NG’ANG’A NJERI LEAH

G-62/43300/2022
[email protected]
MASTER OF LAWS (LLM PROGRAM)
Jurisprudence Seminar Question 4.
Early natural law thinkers saw law and government as the outcome of a
social contract among men [and women] made necessary as a means of
promoting order and personal security [Thomas Hobbes] or, in the
alternative, necessary for the protection of human entitlements [John
Locke].
Evaluate the relevance of the social contract theory to modern day
discourses on the role and function of law and government.

The Social Contract Theory falls under the Natural Law school of law, and goes
back to Protagoras and Epicurus. In its modern form, it was revived by Thomas
Hobbes, and later developed in various ways by John Locke, Jean Jacques
Rousseau and Immanuel Kant. After Kant, political philosophers did not favour it
until it was resurrected by John Rawls.1

The Social Contract Theory proposes that according to law, no man can be
subjected to the political power of another without his own consent, and that
obedience to authority is legitimized by voluntary submission to those in
authority. That as such, civil society and civil society laws come about from a
social contract amongst the people.2

According to Thomas Hobbes, the social contract exists amongst the subjects
themselves, and not between subjects and their ruler/government. On entering
the contract, the subjects pass onto their ruler all their rights, duties and values,
making the ruler the absolute repository of these rights and duties thereof. The
ruler henceforth acts or does what deems fit to the ruler, and not to the subjects. 3

1
D’Agostino, Fred, Gerald Gaus, and John Thrasher, "Contemporary Approaches to the Social Contract", The
Stanford Encyclopedia of Philosophy (Winter 2021 Edition), Edward N. Zalta (ed.), URL =
<https://plato.stanford.edu/archives/win2021/entries/contractarianism-contemporary/>.
2
John Paul Omony, Key Issues in Jurisprudence: An In-depth Discourse on Jurisprudence 2 Problems ( JP
Omony 2006)
3
Omony (n 2 )
In summary, to him, the people surrender their sovereignty through the social
contract.

John Locke, on the other hand, diverged from Hobbe’s idea of a social contract,
and advanced the idea that an actual contract existed between the Ruler and the
subjects, in which the ruler guaranteed the rights of the subjects. The subjects
must obey the Ruler, and in return, the Ruler must protect the subjects, and in the
event the Ruler failed to protect the subjects, then the Subjects ought not to obey
such Ruler.4

Along a similar basis, Rousseau advances the idea that man is born with
inalienable rights to freedom and equality, upon which the social contract is
formed. The general will of the people defines the social contract, and this will is
the basis of government. People’s sovereignty must never be surrendered, and
any person who performs sovereignty without the people’s consent violates the
law.5

John Rawl advanced the Theory of Justice, in which he argues that it is only under
a “veil of ignorance” that human beings can reach a fair and impartial
agreement/contract as true equals not biased by their place in society. Therefore,
his is a theory of justice as fairness, whereby he recommends equal basic
liberties, equality of opportunity, and facilitating the maximum benefit to the least
advantaged members of society in any case where inequalities may occur.

Relevance of the Social Contract Theory with Reference to Hobbes and

The two philosophers’ conception of the Social Contract theory differ in various
ways, but the common conception is that persons in a state of nature would
willingly come together to form a state.

Hobbes’ greatest work, Levithian (1651) expounds on his Political absolutism

4
Omony ( n 2 )
5
Omony ( n 2 )
his desire for self preservation, characterized by competition, distrust and man’s
desire for glory, and that without a powerful sovereign (Levithian) to hold man in
awe, men would live in a constant state of war as each of them struggles to
protect their selves. That therefore, absolute power is critical to a successful civil
society.6

To a small extent, Hobbes theory depicts the current absolute status and powers
of the sovereign in many states, but only to the extent that there is no other
authority higher than that of the sovereign, and the sovereign’s will is thus law.

Also, the social contracts, whether explicit or implicit, provide a valuable

John Locke’s theory of social contract is more applicable to our circumstances, in

The Social Contract Theory has some weaknesses and aspects of inapplicability to
modern society. For instance, Hobbes theory of social contract is artificial and not
applicable to modern day discourses because it assumes absolute authority
without adequate standards to prevent the abuse of power by the powerful
sovereign. If prefers a monarchial form of government, which is not practical in
modern day.

Hobbes’ argument of a state of nature is not real, because if humans were so bad
and asocial, there is no way such humans would have come together to form a
society or state.

Generally, the Social Contract Theory constrains human existence to the

6
Perez Zagorin, “Thomas Hobbes” in International Encyclopedia of Social Sciences (New York, 1968)
prevailing government or social system, even though an individual may not wish
to be born under it or exist in this state.

Further, the social contract theory is hardly implemented, in that several states
demand their citizens to obey the law, but on the other hand, these states do not
give the citizens equal benefit from fulfilling the duties of law.

Conclusion

In conclusion, the Social Contract Theory gives the government too much power
to make laws under the guise of protecting the public, therefore it paves way for
the making of laws that are intrusive to the citizens.