The Liberal Contractual Tradition

In one line

The contractual tradition explains justice by asking what free and equal people would agree to, and its whole force comes from the fact that agreement is a standard nobody can complain about.

In the wording a student can write in an exam: the liberal contractual tradition grounds political obligation and justice in consent. It supposes an original condition without government, the state of nature, and asks what terms rational persons in that condition would agree to. The arrangement they would agree to is just, and government has authority only so far as it conforms to that agreement. Its principal early exponents are Thomas Hobbes (1588 to 1679), John Locke (1632 to 1704) and Jean-Jacques Rousseau (1712 to 1778), and its modern restatement is John Rawls, treated in the next chapter.

The common structure

1. A state of nature. A hypothetical condition without political authority, used to isolate what government adds.

2. A defect in it. Something makes that condition intolerable or unstable.

3. A contract. Rational persons agree to establish authority to remedy the defect.

4. The terms of the contract fix the limits of authority. Because the government exists by agreement and for a purpose, it has no authority beyond that purpose.

The device is not a historical claim. No writer in the tradition asserts that a contract was actually made; the contract is a way of asking what could be justified to each person.

Hobbes

The state of nature. A condition of war of every man against every man, in which there is no industry, no culture, no society, and continual fear and danger of violent death, so that the life of man is solitary, poor, nasty, brutish and short.

The defect. Insecurity. Without a common power there is no law, and without law no justice: notions of right and wrong have no place.

The contract. Each surrenders his right to govern himself to a sovereign, on condition that all others do the same. The sovereign is not a party to the contract and is therefore not bound by it.

Justice. For Hobbes, justice is the keeping of covenants, and there are no covenants before the sovereign exists to enforce them. Justice is therefore the creation of law, which makes Hobbes an ancestor of the equivalence theories in Module IV.

The objection. A sovereign not bound by the contract is not limited by it, so Hobbes secures order at the cost of the limited government the tradition is supposed to justify.

The Indian parallel. Hobbes's war of all against all is close to matsya nyaya, the law of fishes, which the classical Indian texts give as the reason for instituting a king. The difference is decisive: in the Indian account the king is instituted to enforce dharma and remains bound by it, which is [Raja Dharma: The Duty of the Ruler].