=-LAW 294: Law, Culture and Community
Week 5-6 ppt: Introduction to the Social Contract Tradition --Hobbes and Locke –
Slide 2
1. Introduce Social Contract idea –
A particular approach to asking a fundamental question about law:
Why does law “command” our respect? Where does law get its power (or
authority) over us? Why are some statements addressed to us, and received by us,
understood by us as imperative, requiring our acquiescence to one degree or
another, and other statements we may take as good advice, or as a suggestion for
how we ought to behave?
Antigone – what is the source of law’s authority for her?
Creon – what is the source of law’s authority for him? Did natural law have a
role in his understanding of the authority of positive law?
Haemon – was he making a case for the Social Contract in legitimating Creon’s
rule?
2. How is the Social Contract idea related to The Crito?
And, now Socrates argument on behalf of the “Laws of Athens” –
We are first introduced to the notion of an individual having a ‘social contract’
with the laws of her state in Socrates discussion with the ‘laws of Athens’ in The
Crito.
Why does Socrates believe he must accept the punishment for a law he feels he
did not violate – he believes he was wrongly convicted, yet he believes he must
accept the punishment? Why? Why is Socrates in favor such an authoritarian
view of law?
3. “Our Focus: Thomas Hobbes and John Locke”
We are spending this week with two titans in the History of Ideas on the question of the
role of law in society – Why we have law? What is the source of the political legitimacy
of law – another way to ask this question is Why does “law” have any moral authority
over us (as opposed to it just being a suggestion we can take or leave).
Two 17th British century thinkers -- Thomas Hobbes, author of the Leviathan, and John
Locke, author of the Second Treatise on Government – employ the analytic device of
thinking about what society would be like if there were no Positive Law, if individuals
existed in a “State of Nature”. Hobbes and Locke offer stark contrasts about what this
“State of Nature” is like to live in. But in both circumstances, the authors agree that
individual’s would rationally choose – that they would see it in their individual interest –
to create positive law and governance structures that create enforceable rules that would
bring more certainty and definition to their world – in terms of certainty of private
property ownership, certainty in terms of punishment for individuals who violated the
agreed rules for social behavior.
Hobbes and Locke are the two modern foundational thinkers in the “Social Contract”
tradition of thought
We are looking at political theory as it developed in the early Enlightenment period. This
is a time of secular state building – English Civil Wars (1642-1648) against the
Monarchy – the “Roundheads” versus the “Royalists”, King Charles I beheaded Oliver
Cromwell became “Lord Protector of the Commonwealth”. Cromwell has short-lived
rule – “warts and all,” harsh ruler, controversial figure. Cromwell buried in Westminster
Abbey, but after Royalists return to power in 1658, Cromwell’s corpse is dug up, hung in
chains and beheaded … Hobbes living through all of this and Leviathan is published in
1651 (!) – which is an argument for a strong authoritarian ruler.
The charge against Charles I at his trial was that he claimed “unlimited and tyrannical
power to rule according to HIS will and to overthrow the rights and liberties of the people
of England (Magna Carta history).
So, from this historical period we begin to see shaping our modern ideas about the
relationship between democratic government and the people are grounded in our evolving
understanding of what “Human Dignity” requires:
Respect for the individual,
Equality of opportunity,
Justice – Procedural Justice (ROL on dignity grounds and respect for individual
freedom), Distributive Justice, perhaps Social Justice, and,
Representative Democracy (Locke) with the Separation of Powers, – with an
independent judiciary --
Slide 3
This is a slide from the first week of class. The questions are very important to Hobbes
and Locke. They are part of a group of political thinkers from the “Social Contract
Tradition” -- “Tradition” here means that there are a number of thinkers loosely held
together because they are all trying to figure out why law should command our respect,
and they differ with each other over central issues involving the role of the state on the
issue of how to best pursue individual flourishing – should the individual’s atavistic
desires – her particular self-oriented desires – be prioritized over the needs of the
community? Is that the point of law and political authority – some people become “more
free” than others. Hobbes and Locke are focused on the rights of the individual, but more
communitarian-inspired thinkers – like Jean Jacques Rousseau (“Man is Free, but
everywhere he is in Chains”) and Karl Marx – have concerns about whether the exercise
of legal authority premised on the individualized concept of the “social contract” in a
political society can have the consequences of creating “Haves” and “Have nots” – is the
legal system set up to serve certain groups of individuals, but not others. Does the “rule
of law” really create a level playing field -- and remember, the Rule of Law is an ideal
we’re constantly shooting for.
Slide 4
OK, remember this from week 1 – our Founders felt as though their ‘social contract’ with
England had been breached by the British. The Declaration of Independence is a type of
manifesto identifying – calling out, so to speak -- the source of this breach.
We’re going to be discussing the ‘social contract’ as a type of evaluative standard for our
experience with government. Stop and think about it. We don’t really as individuals
have a social contract with our elected officials – where we’ve entered into some
transaction and agreed exchange of promises that we can see in a document we’ve
signed.
Now, the founding generation of the US didn’t enter into a written contract with the King
of England, either. But, you get the sense with the Declaration of Independence that
Jefferson, Adams and et al certainly believed they had an implied contract with the
British government – and that the Brits had breached their promises vis a vis the
Colonists (no taxation without representation, etc.). So, the founding fathers issued this
contractual notice – a Declaration of Independence.
Very similar to the Southern States secession effort leading to the Civil War …
Slide 5
Let’s think for a minute about the power of a “social contract” as a basis for political
authority. Remember, the debates – and battles – during the times of Hobbes and Locke
shaped our modern ideas about the relationship between democratic government and the
people are grounded in our evolving understanding of what “Human Dignity” requires:
We were moving away from law and political authority based on the “divine right of
Kings…” ( a la Creon) and towards political and legal authority in the state based more
on Enlightenment principles like -Respect for the individual, and acknowledgement of the individual’s capacity for rational
thought;
Equality;
Modern ideas of Justice – Procedural Justice (ROL on dignity grounds and respect for
individual freedom), Distributive Justice, perhaps Social Justice, and,
Representative Democracy (Locke) with the Separation of Powers, – with an
independent judiciary -All of these ideas and issues assume that government is done by CONSENT, and in a
way that satisfies the majority of the people.
And, all of these ideas, issues find their origins in the 17th century debates between
“Contractarians” over the legitimate role of government in the exercise of its political
authority.
With a “contract” there is the element of consent, individual choice, negotiation, being
able to reject or accept, being able to collect damages (payment, some form of relief) if
your contracting party violates her terms of the agreement.
Do we really get all this from our “social contract” with our political authorities????
A closer look at the Purpose of the Social Contract:
Some terms we are working with:
Power is the ability to do something.
(Legitimate) Authority requires that power is acknowledged by the general
consent of the people.
Take note: For Contractarians, the State is not something separate from and in
charge of those who are subject to its laws. The State is – or should be – the
collective agent of the citizens, who decide what the laws should be.
Think about it: The “social contract” provides a democratic moment in the creation
of a political and legal system. At its core, democracy has to do with the people as a
whole having the power to make decisions about the rules under which they are going to
live. The thought goes here, that if the group of people responsible for making the rules
is the same group that’s going to have to live under them, then it’s not likely that you’ll
end up with unfair, capricious, vindictive rules. The Social Contract views citizens as
political equals here.
So how does Consent work, then: What work is the idea of “consent” really
doing in our understanding of what the “social contract” is doing in our political and legal
system? Do we really give our consent to those who have official power over us? – Can
we really take it or leave it when we get pulled over by a cop? Can we really say that we
didn’t personally agree to pay taxes?
The political leaders of America’s founding generation took the concept of “consent”
literally – that’s what the Declaration of Independence is all about: you broke your
promise, King of England, so we’re out of here.
But what about us, what about in our time? Putting Texas aside, is it likely that we’ll
pick up our muskets and declare independence from the state when we disagree with its
policies, or believe it is gravely overstepping its bounds in our lives? Unlikely, that
we’ll “declare independence”. So, what’s the point of thinking about a “social contract”
then … use of the device as an evaluative standard with which to judge the legitimacy of
our political and legal institutions.
Think about the Tea Party movement – it’s very connected to the concept of using a
social contract idea as an evaluative standard for whether gov’t is doing its job, fulfilling
its proper (limited) role.
Slide 6
You should read the White book, ch 8, for more on this topic.
Slide 7
Again, I’m summarizing the major aspects of Hobbes’ assumptions and theory. You
should read White here as well.
Slide 8
Notice the distinctions Hobbes makes between Natural Right, Natural Law, and Positive
Law.
Important: for Hobbes, Law has the possibility of making life bearable.
If you can somehow manage to escape the State of Nature and set up a Leviathan, then
you don’t want to go back. Goal of law: is Order, Stability, Predictability
Slide 9-12
I’m summarizing Locke’s assumptions and theory. Read White ch. 8.
John Locke a fascinating thinker. His insights have been deployed by all types of “liberal
theorists” –
classical liberal thinkers like Adam Smith,
modern liberals responsible for aligning law with the creation of the “Welfare State,”
stretching the concept of equality and fairness to include ideas about what count as “basic
human needs” (like food, shelter, medicine, education, a job?); and
libertarians that argue Lockean property theory provides support for minimal law and
government that would protect our “pre-political property rights and freedoms”