Natural Rights and Social Contract Theory

What are natural rights? What is a social contract? These concepts have enormously influenced political and moral thought since the latter half of the sixteenth century. Indeed, each has enormously influenced the other, since changing conceptions of natural rights helped change conceptions of the social contract, and vice versa. Natural rights and social contract theory have since the 17th century been one of the chief philosophical grounds of the political ideology known as liberalism.

Indeed, one could say that their chief rival among the schools of political philosophy--utilitarianism--is also their chief rival for the title of the ground of liberalism.

The idea and theory of a social contract achieved prominence in Europe around 1600, when it became one of the leading ways of explaining and delimiting people's duty of obedience to their government, and of their right to resist and overthrow government when it becomes oppressive. It was at about this time that political philosophers adopted a new view of the central problems of political philosophy. In the Middle Ages, the central problems had been widely considered to be: What is the best form of government, and why? What should the laws require, so that the laws of a polity are good, and not bad? Questions about why and under what circumstances people have a duty to obey decent government, when they may justly exercise their right to resist oppressive government, and what distinguishes a legitimate law from an illegitimate law, were considered; but they were thought peripheral and secondary. However, with the onset of the Protestant Reformation and the European Wars of Religion (1524-1651), questions of political obligation became urgent. Catholic subjects found themselves with Protestant rulers, and Protestant subjects found themselves with Catholic rulers. But it was widely assumed that rulers had the duty to protect and defend the one true religion, and Catholicism and Protestantism were widely considered incompatible rivals for that title. So subjects found themselves governed by rulers who they thought were failing in their duty to defend true religion. Moreover, since many rulers persecuted the other confession, many subjects thought their rulers were actively persecuting the true religion. In these conditions, the burning questions for political theory were obviously the limits of the duty of obedience, the limits of the right of resistance, and the limits of a law's legitimacy. People wanted to know when they were morally obligated to obey and when they weren't; when they could justly resist and overthrow government they disliked and when they couldn't; and when a law which they disliked was legitimately imposed and when it wasn't. By the 17th century, these had come to be considered the central problems of political philosophy. Questions of the best form of government, or of when a law has good content, came to seem secondary.

With this new view of the problems of political philosophy, the theory of the social contract came into its own. For it seemed to offer a plausible and attractive answer to the new central problems. How far does your duty to obey government extend? Just far as that government performs those tasks and preserves those rights with which a social contract between people and government would task government; but no farther. When can you justly invoke the right to resistance? When that government flagrantly and systematically fails to perform those tasks or preserve those rights. What makes a law legitimate? When it is generated by the institutions and procedures that are part of the terms of the social contract.

Until the end of the 17th century, the social contract was understood in communitarian or corporative terms. It was not understood in the individualistic terms that many take for granted today. On the corporative conception of the social contract, government receives its legitimate power in a grant from the community as a corporate body, not from the individuals comprising that community. Governments acquire legitimate authority when that community consents--through its rightful representatives--to alienate its power to the government. Therefore, the right of resistance to oppressive government is borne by the whole community, not by individuals. People do have a right to resist their government when it flagrantly violates the contract, but only insofar as the community through its duly authorized representatives recognizes and declares that the government has spurned the contract. There is, then, no genuine right of resistance to oppressive government enjoyed directly by individual persons. The community-as-corporation is the bearer of that right. This communitarian social contract theory was developed and made central to political theory by Huguenot thinkers in the 1579 pamphlet, Vindiciae contra Tyrannos (Defenses against Tyrants), then by the Jesuit philosophers Juan de Mariana (On the King and the Institution of Kingship, 1599) and Francisco Suarez (see below). It was also taken up in Britain, where it figured in Richard Hooker's immensely influential work on the proper government of churches (Of the Laws of Ecclesiastical Polity, 1594-7), and was then made central in a famous tract by the Parliamentarian and Presbyterian Samuel Rutherford during the English Civil Wars (Lex, Rex: The Law and the Prince. A Dispute for the Just Prerogative of King and People, 1644).

By about 1650, then, communitarian social contract theory was one of the most influential justifications of government and theories of legitimacy in the European-ruled world. It was a theory with immense prestige and authority, a theory whose power and appeal made princes think twice before resorting to tyrannical measures. Indeed, it was this theory to which the English Parliamentary forces appealed when they beheaded their king and replaced the monarchy with a commonwealth, in 1649. Much of the debate those acts occasioned across Europe was not about whether the theory was true, and the right one to use in the circumstances, but whether the theory had been applied correctly--i.e., whether it implied that the English king should be executed and the monarchy replaced with a republic. And indeed, it was widely believed at the time that the principles of communitarian social contract theory, if driven to their natural conclusions, would justify the political ideology of republicanism, according to which a people can be truly free only in a popular republic. (That doctrine was made famous by John Milton and other English republicans who claimed to derive it from the corporate social contract.)

It was into this context that Thomas Hobbes dropped a bombshell. In Leviathan: Or, the Matter, Form, and Power of a Commonwealth, Ecclesiastical and Civil (1651), Hobbes radically revised social contract theory. He rejected wholesale the communitarian and corporative aspects of the social contract tradition. For Hobbes, the bearers of the right to consent to government, and of the right to resist government that violates the social contract, are always and primarily individual persons. It is not the community that consents to government through an agreement between its authorized representatives and the sovereign: it is the whole body of individuals, each making an agreement with every other individual, to alienate their natural rights and liberties to a government and sovereign that they together agree to create. It is only when such an agreement among individuals has been reached, Hobbes argues, that a corporate body like the people or the community can be said to exist. There is no pre-contract community. Nor is there any agreement between the sovereign and the people.

This individualistic social contract theory is totally antithetical to the communitarian social contract. Indeed, Hobbes saw the communitarian contract, when combined with the republican thesis that people can be truly free only in a popular republic, as a fount of civil war, social unrest, and bad government. For this, as well as many other heresies, he was despised by both communitarian contract thinkers and republicans. Indeed, for 100 years after the publication of Leviathan, to be labeled a "Hobbist" was socially dangerous.

But despite near-unanimous opposition to Hobbes's individualist social contract, it quickly began to affect political thought. The next great social contract theorist, John Locke, though he always declared himself opposed both to Hobbes's philosophical foundations, and the authoritarian conclusions Hobbes drew from them, presented and defended in Two Treatises of Government (1688), a thoroughly individualist social contract theory. For Locke, the contract is among individuals. True, these individuals live in a pre-political society--the state of nature is one in which society already exists. But the contractors and the bearers of rights to authorize government and to resist oppressive government are, for Locke, essentially individuals.

Two Founders of Modern Natural Rights Theory, and of Social Contract Theory

Levellers of the British Civil Wars, 1640-1650s

The Levellers argued from the claim that all men are born with natural rights to the conclusion that there should be equality before the law, freedom of religion, near-universal male suffrage, annual parliaments, no consecutive terms for representatives, no state-sanctioned monopolies, no military conscription, and that the people were the ultimate sovereign in the political order.

(N.B., the Levellers should not be confused with the Diggers or "True Levellers," a radical sect of the Levellers led by Gerrard Winstanley, who argued for equality of real property and organizing society along agrarian communist lines. The Diggers wanted land to be common property or public property, not private property. For them, the enclosure movement was a great injustice. So they wanted to level real property, while the mainstream Levellers wanted to level political status.)

Thomas Jefferson, 1743-1826 (Wikimedia Commons)

Defended Lockeian natural rights, but was a bit vague about whether he accepted the social contract theory of state legitimacy. In the Declaration of Independence, he says that governments derive their just powers from the consent of the governed, but this does not itself imply that government is best seen as an agent to whom the people have temporarily and provisionally granted legitimate political authority. On the other hand, he did once maintain that it is a good idea to scrap and rewrite a polity's constitution every 20 years or so.

A liberal-republican, with democratic leanings.

Mary Wollstonecraft, 1759-1797 (Wikimedia Commons)

-A Vindication of the Rights of Men, in a Letter to the Right Honourable Edmund Burke; Occasioned by His Reflections on the Revolution in France (1790)

-A Vindication of the Rights of Woman: with Strictures on Political and Moral Subjects (1792)

Defended natural rights

Immanuel Kant, 1724-1804 (Wikimedia Commons)

Theory and Practice (1793)

Toward Perpetual Peace (1795)

The Metaphysics of Morals, Part I: Metaphysical First Principles of The Doctrine of Right (1797)

The Conflict of the Faculties (1798)

Defended a social contract theory of state legitimacy, but grounded moral principles in the requirements for any rational being's having autonomy: not in rights natural to human beings

A liberal and republican, he was not a democrat.

Johann Gottlieb Fichte, 1762-1814 (Wikimedia Commons)

Foundations of Natural Right (1794)

A defender of natural political rights in the sense of near-absolute civil and political rights that the state must respect; but grounded those rights in the requirements for the self to become fully conscious of itself as self. Has a social contract theory of state legitimacy.

In later writings, he was more open to sacrificing individual rights to the needs of the nation or the state.

Natural Rights and Social Contract Theory Under Attack in Europe, 1815-1914

After the final defeat of Napoleon, natural rights theory and individualistic social contract theory both came under sustained attack in Europe: not just by conservative defenders of the status quo and reactionaries who yearned for the extinct old order, but also by liberal reformers and even republican and socialist revolutionaries. Two objections were especially important to the reformers' criticisms of natural rights and the contract. The first was against metaphysical natural rights: the idea that there were some objective, universal, and perennial moral rights possessed by human beings in virtue of a common human nature. Utilitarian Positivists like Bentham, the Philosophic Radicals, and J. S. Mill challenged the existence of such rights on the positivist grounds that no one could possibly experience such a right. Moreover, a gathering historicism led more people to agree with Rousseau that human nature changes through history, and thus that there could be no single unchanging set of perennial and ultimate human rights. On the other side, social contract theory was challenged both on positivist and organicist grounds. The positivist objection, first influentially made by Hume and trumpeted by the classical utilitarians, was that very few people had ever actually consented to be governed, and that it was hard to see how tacit consent could ever be fairly proved. The organicist objection was that social contract theory modelled the contractors in an unduly atomistic and counterfactual way: society, they argued, is much more like an organism which develops without conscious control by its parts than it is like an artificial construct or machine consciously controlled by some outside force (who?).

Moreover, there was a widespread feeling in Europe until the end of the 19th century that natural rights theory and social contract theory had both been essential to the bloody excesses within the French Revolution and to the imperialism of Revolutionary-Napoleonic France. Both theories, it was felt, had so vociferously championed and justified the right of resistance to oppressive government that they had encouraged bloodthirsty terror in the name of ending oppression. The proto-positivist and socialist Saint-Simon, for example, blamed the French Terror and the French conquest of Europe in part on the attraction Robespierre and his fellow lawyers felt for natural rights and social contract and their emphasis on equality and the right of resistance.

As a consequence, metaphysical natural rights theory and social contract theory were both out of fashion among serious technical philosophers from about 1815 to 1914. A philosopher who defended either was swimming against the current.

Natural Rights and Social Contract Theory in the Americas, 1815-1914

In the Americas, thinkers were slower to reject natural rights and social contract theory than in post-1815 Europe. In their separate ways, Andrew Jackson, Frederick Douglass and Abraham Lincoln were all distinguished for the brilliance of their applications of natural rights thinking. In the same period in Latin America, natural rights and social contract theory were stoutly defended and illuminatingly applied by a host of distinguished liberal-republican thinkers. (Utilitarian liberalism was also prominent in Latin America during this period.)

It was only beginning about 1860 that thinkers in the Americas began to quietly abandon the two doctrines. In the Lockean United States, social contract theory fell on hard times after 1861, for it was suspected that the theory had contributed to the South's attempt to secede from the Union, and for its commitment to states founded on racial slavery. But the doctrine of natural rights continued to be widely popular throughout the period. Many anti-slavery arguments appealed to natural rights. And many pro-slavery arguments did the same, arguing that which legal rights anyone had depended on their natural rights, but slaves were not genuinely human, and so did not have the natural right not to be enslaved!

In Latin America, it was natural rights that first fell on hard times. By 1870, many liberal-republican thinkers in Latin America were coming to believe that one of the reasons the Latin American nations had been unable to create stable liberal-republican regimes since the independences of 1810-1825 was precisely because of their commitment to natural rights. Natural rights, they thought, made people unwilling to accept any feasible non-oppressive government, no matter how committed to liberal-republican goals and procedures. Latin American liberal-republicans came to think that part of their predicament was due to prior liberals' commitment to natural rights. So they cast around for an alternative, and found an attractive one in the philosophy of positivism, especially when understood to imply the liberal principles of J. S. Mill and Herbert Spencer, as well as those of Auguste Comte's authoritarian socialism.

Frederick Douglass, 1818-1895 (Wikimedia Commons)

"What to a Slave Is the 4th of July? (1852)

Natural Rights and Social Contract Theory in an Anti-Organicist Age, 1914-1960

The massive and seemingly pointless slaughter of the First World War was widely blamed on the organic theory of the state and society, among other things. Just as the senseless bloodshed of the French Revolutionary Terror and Napoleon's wars had been blamed on people inflamed by ideas of natural rights and the social contract, now the senseless bloodshed of the war in the trenches was blamed on people inflamed by the organic theory. That blame, along with modernism's distaste for evolutionist models and metaphors--it dethroned Darwin and made Einstein the king of scientific thought--overthrew the organic theory: even the Nazis saw the state as more like an animal group or an army than like an organism. So one main objection to social contract theory suddenly vanished. But the time was not yet ripe for the contract's resurgence. Utilitarianism continued to predominate in secular moral theory and in political thinking; public policy, especially after the Great Crash of 1929, was sympathetic to socialist and collectivist premises and attitudes; and in general philosophy, the neo-positivism of the Vienna Circle was insisting that moral statements were arational expressions of emotional attitudes.

Natural Rights and Social Contract Theory in an Age of Struggle, Suspicion of Political Authority, and Anti-Statism, 1960s-1970s

In the 1960s, utilitarianism and neo-positivism were overthrown, and in the 1970s, collectivism was dethroned and replaced by individualism. Natural rights and social contract theory returned in triumph.

It was probably the policies by which the US fought the Vietnam War that ended the long reign of utilitarianism. US military policy was to bomb and strafe Vietnamese villages thought to harbor Viet Cong guerrillas, after giving the villagers due warning. The rationale was that this was the most efficient way of speedily defeating the Viet Cong and so ending the war and its evils. But the hundreds of thousands of civilian casualties that resulted were widely regarded as an unacceptable consequence of such debased utilitarian thinking. Perhaps, people thought, such horrific means could be justified in order to speedily defeat Nazi Germany and its allies. But to defeat a nationalist-Communist insurgency against an illegitimate, brutal, and venal government--loathed by most of its people--in a geopolitically insignificant country? Something had gone wildly wrong in the US government's utilitarian calculations, which US Defense Secretary Robert McNamara, himself widely regarded as the architect of the Vietnam policy, pithily expressed as follows: "The picture of the world's greatest superpower killing or seriously injuring a thousand non-combatants a week, while trying to pound a tiny backward nation into submission on an issue whose merits are hotly disputed, is not a pretty one."*

Fairly or not, utilitarianism itself was blamed for this morally corrupt reasoning. As a result, the authority and prestige that utilitarianism had long enjoyed vanished almost overnight. For appealing alternatives immediately presented themselves. First came John Rawls's Theory of Justice, published in 1971, with its famous Kantian doctrine that "utilitarianism does not respect the separateness of persons," and its defense of a theory that took as basic the equal dignity and equal rights of all individuals. Then, in 1974, there followed an equally brilliant book: Robert Nozick's Anarchy, State, & Utopia, with its famous opening sentence: "Individuals have rights, and there are things no person or group may do to them (without violating their rights)." Finally, in 1977, Ronald Dworkin published Taking Rights Seriously, which argued for seeing "[individual] rights as trumps" against collectivist-utilitarian policies, and for the Kantian view that government's chief duty is to give equal respect to all its citizens. With this, the triumph of natural rights and the social contract over utilitarianism was complete.

But what of neo-positivism, another traditional nemesis of social contract thinking? As Brian Barry famously noted, the fact that A Theory of Justice could keep up rational argument about questions of value for 600 pages seemed to decisively refute the doctrine that value judgments were merely arational expressions of emotions. That doctrine, A. J. Ayer's "emotivism," was widely thought essential to neo-positivism.** So it was widely concluded that Rawls had by his practice refuted a central doctrine of neo-positivism. This conclusion combined with a widespread feeling that emotivism and neo-positivism's endorsement of value-neutrality had together fostered a moral climate in which defense policy was made by consulting only coldly rational calculations of national self-interest, without any serious consideration of moral values or individual rights. The appalling results such calculations had on Vietnamese civilians were catalogued at length in the famous Pentagon Papers, which the New York Times began to publish in 1971.The combination was too much for neo-positivism, and its days of authority over moral theory were ended. Natural rights and social contract theory were now in the ascendant.

* Quoted in Hannah Arendt, "Lying in Politics," Crises of the Republic (1972), p. 2.

** Brian Barry, "The Strange Death of Political Philosophy," Democracy and Power: Essays in Political Theory 1 (1991), p. 19.