The Liberal Contractual Tradition

Locke

The state of nature. Not war but inconvenience. Persons are free and equal and are governed by a law of nature discoverable by reason, which teaches that no one ought to harm another in his life, health, liberty or possessions.

The defect. In that condition each is judge in his own cause, there is no settled known law, no impartial judge and no power to execute a sentence.

The contract. Persons agree to establish government to remedy those three defects: to supply a settled law, an impartial judge and an executive power.

Justice. Rights, including property, exist before government and are not created by it. Government is a trust, and a government that acts contrary to the trust may be resisted.

Why Locke matters most for a law student. He supplies the structure of the modern constitutional order: pre-existing rights, limited government, separation of functions, and a remedy against a government that exceeds its authority. Part III of the Indian Constitution is Lockean in structure, since it treats rights as recognised rather than conferred.

The objection. The account of property, that a person acquires property by mixing his labour with what is unowned, has been criticised as licensing acquisition without limit and as taking no account of those born after everything is owned.

Rousseau

The state of nature. Neither war nor inconvenience but a condition of natural simplicity, which is corrupted by the growth of property and dependence. Rousseau's famous opening is that man is born free and is everywhere in chains.

The contract. Each associates himself with all, and, obeying the general will, obeys only himself and remains as free as before.

The general will. Not the will of all, which is the sum of private wills, but the will directed at the common good. Justice consists in conformity to it.

Why it matters. It is the ancestor of the idea that a democratic community can be self-governing without any person being subject to another's will, which is the theory behind popular sovereignty and behind the Preamble's "We, the people".

The objection. If the general will is not what people actually want, somebody must say what it is, and Rousseau's remark that a person may be forced to be free is the standing objection: a theory of freedom that permits coercion in freedom's name is dangerous.

What the tradition contributes to a theory of justice

Consent as the criterion. An arrangement is just if it could be agreed to by those subject to it, which is a standard that respects each person as an agent rather than as a recipient.

Limited government. Authority exists for a purpose and is bounded by it. This is the philosophical basis of the argument in [The Philosophy of Judicial Review and Limited Government].

Rights before government. Locke's proposition, and the structural assumption of Part III.

A standard for judging law. A law contrary to the terms of the contract is not merely bad but is beyond authority, which is the natural law position and is what [The Independence of Justice from Law] describes.

The criticisms

The contract never happened. Answered by treating it as hypothetical, but a hypothetical agreement binds nobody unless the reasons for making it are good, so the work is done by those reasons and not by the agreement.

Who was party to it. The classical contractarians wrote of men of property. Women, servants, the propertyless and colonised peoples were not parties in any sense, and the tradition has been criticised on that ground.

Consent can justify too much. If people would agree to it, almost any arrangement can be defended, which is why Rawls constrains the conditions of agreement.

It abstracts from actual inequality. Real people do not bargain as equals, and an agreement reached between unequals reflects the inequality.

A worked example

A State requires every resident to carry an identity document and to produce it on demand.

On Hobbes. The sovereign's authority is not limited by the contract, so the requirement is within it if the sovereign judges it necessary for security.

On Locke. Government is a trust for the protection of life, liberty and property. The requirement must be shown to serve that purpose and to go no further, which is a proportionality argument.

On Rousseau. The question is whether the requirement conforms to the general will, that is, whether it serves the common good rather than a sectional interest.

In Indian law. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, holds privacy to be intrinsic to Article 21 and applies legality, necessity and proportionality, which is Locke's structure in modern form.

Quick revision

1. Structure: a state of nature, a defect in it, a contract to remedy the defect, and terms that limit authority. The contract is hypothetical, not historical.
2. Hobbes: war of all against all; life solitary, poor, nasty, brutish and short; justice is the keeping of covenants and presupposes a sovereign; the sovereign is not a party and is unlimited.
3. Locke: inconvenience, not war; three defects, no settled law, no impartial judge, no power to execute; rights precede government; government is a trust; resistance is available.
4. Rousseau: man born free and everywhere in chains; the general will as against the will of all; freedom through obedience to a will one shares.
5. Contributions: consent as criterion, limited government, rights before government, and a standard for judging law.
6. Criticisms: the contract never happened; who was party to it; consent can justify too much; and it abstracts from actual inequality.
7. Indian parallels: matsya nyaya resembles Hobbes but leads to a bound king; Part III is Lockean in structure; Puttaswamy applies the Lockean test in modern form.

Test yourself

1. Set out the common structure of a social contract argument. A hypothetical state of nature without political authority; a defect in that condition which makes it intolerable or unstable; an agreement among rational persons to establish authority to remedy the defect; and terms of that agreement which fix the limits of the authority so established, since it exists by consent and for a purpose.

2. Compare Hobbes and Locke on the position of the ruler, and say why the difference matters. For Hobbes the sovereign is not a party to the contract and is therefore not bound by it, so order is secured at the price of unlimited authority. For Locke government is a trust established to supply a settled law, an impartial judge and an executive power, so it is bounded by that purpose and may be resisted if it acts contrary to the trust. The difference matters because only Locke's version yields limited government, which is the structure of Part III.

3. What is the general will, and what is the objection to it? The will directed at the common good, distinguished from the will of all, which is merely the sum of private wills; justice consists in conformity to it. The objection is that where the general will is not what people actually want, somebody must declare it, and Rousseau's remark that a person may be forced to be free shows the danger: a theory of freedom that licenses coercion in freedom's name.

4. Give two criticisms of the tradition and the best answer to one of them. That the contract never happened, and that those subject to the arrangement, including women, the propertyless and colonised peoples, were not parties in any sense. The answer to the first is that the contract is a device for asking what could be justified to each person rather than a historical claim; but the answer is partial, because a hypothetical agreement binds nobody unless the reasons for making it are good, so the justificatory work is done by those reasons and not by the agreement itself.