NATURAL LAW THEORIES IN RENAISSANCE PERIOD (SOCIAL CONTRACTS)

T HE Renaissance period is usually associated with the Arts and with

Literature; it is considered as a new birth of the Greek and Roman classics
but also as the discovery of a new sense of life, as a period in which the
autonomous individual, as the person in a pronounced meaning, escapes
from the pre-eminence of the clergy and a morality determined by the
Church. Nourished by the rediscovered philosophy of life of the classics, an
emancipation takes place of the man of the world, of the man of secular
learning, and of the artist and the poet, who set themselves up as of their
own right beside, not against, the secular clergy and the learned monk. In
politics this means the dissolution of the medieval union of Church and
Empire in favor of the now fully developed nation-states and city-republics
which stress their autonomy against the Church as against the Empire.
The important shift was made in this era whereby natural law was changed
to be natural right in the renaissance era.

Social Contractarian Philosophers

Social contract theory, nearly as old as philosophy itself, is the view that
persons' moral and/or political obligations are dependent upon a contract or
agreement among them to form the society in which they live. Socrates uses
something quite like a social contract argument to explain to Crito why he
must remain in prison and accept the death penalty. However, social
contract theory is rightly associated with modern moral and political theory
and is given its first full exposition and defense by Thomas Hobbes. After
Hobbes, John Locke and Jean-Jacques Rousseau are the best known
proponents of this enormously influential theory, which has been one of the
most dominant theories within moral and political theory throughout the
history of the modern West.

1. Thomas Hobbes
Thomas Hobbes, 1588-1679, lived during the most crucial period of early
modern England's history: the English Civil War, waged from 1642-1648. To
describe this conflict in the most general of terms, it was a clash between
the King and his supporters, the Monarchists, who preferred the traditional
authority of a monarch, and the Parliamentarians, most notably led by Oliver
Cromwell, who demanded more power for the quasi-democratic institution of
Parliament. Hobbes represents a compromise between these two factions.
On the one hand he rejects the theory of the Divine Right of Kings, which
is most eloquently expressed by Robert that a king’s authority was invested
in him (or, presumably, her) by God, that such authority was absolute, and
therefore that the basis of political obligation lay in our obligation to obey
God absolutely.

He argues, radically for his times, that political authority and obligation are
based on the individual self-interests of members of society who are
understood to be equal to one another, with no single individual invested
with any essential authority to rule over the rest, while at the same time
maintaining the conservative position that the monarch, which he called
the Sovereign, must be ceded absolute authority if society is to
survive.

In the State of Nature, which is purely hypothetical according to Hobbes,

men are naturally and exclusively self-interested, they are more or less
equal to one another, (even the strongest man can be killed in his sleep),
there are limited resources, and yet there is no power able to force men to
cooperate. Given these conditions in the State of Nature, Hobbes concludes
that the State of Nature would be unbearably brutal. In the State of
Nature, every person is always in fear of losing his life to another.
They have no capacity to ensure the long-term satisfaction of their needs or
desires. No long-term or complex cooperation is possible because the State
of Nature can be aptly described as a state of utter distrust. Given Hobbes'
reasonable assumption that most people want first and foremost to avoid
their own deaths, he concludes that the State of Nature is the worst possible
situation in which men can find themselves. It is the state of perpetual and
unavoidable war.

The situation is not, however, hopeless. Because men are reasonable, they
can see their way out of such a state by recognizing the laws of nature,
which show them the means by which to escape the State of Nature and
create a civil society.

The first and most important law of nature commands that each man be
willing to pursue peace when others are willing to do the same, all the while
retaining the right to continue to pursue war when others do not pursue
peace. Being reasonable, and recognizing the rationality of this basic precept
of reason, men can be expected to construct a Social Contract that will
afford them a life other than that available to them in the State of Nature.
This contract is constituted by two distinguishable contracts.

 First, they must agree to establish society by collectively and

reciprocally renouncing the rights they had against one another in the
State of Nature.
 Second, they must imbue some one person or assembly of persons
with the authority and power to enforce the initial contract.

In other words, to ensure their escape from the State of Nature, they must
both agree to live together under common laws, and create an enforcement
mechanism for the social contract and the laws that constitute it. Since the
sovereign is invested with the authority and power to mete out punishments
for breaches of the contract which are worse than not being able to act as
one pleases, men have good, albeit self-interested, reason to adjust
themselves to the artifice of morality in general, and justice in particular.
Society becomes possible because, whereas in the State of Nature there was
no power able to "overawe them all", now there is an artificially and
conventionally superior and more powerful person who can force men to
cooperate. While living under the authority of a Sovereign can be harsh
(Hobbes argues that because men's passions can be expected to overwhelm
their reason, the Sovereign must have absolute authority in order for the
contract to be successful) it is at least better than living in the State of
Nature. And, no matter how much we may object to how poorly a Sovereign
manages the affairs of the state and regulates our own lives, we are never
justified in resisting his power because it is the only thing which stands
between us and what we most want to avoid, the State of Nature.

2. John Locke

For Hobbes, the necessity of an absolute authority, in the form of a

Sovereign, followed from the utter brutality of the State of Nature. The State
of Nature was completely intolerable, and so rational men would be willing to
submit themselves even to absolute authority in order to escape it. For John
Locke, 1632-1704, the State of Nature is a very different type of place, and
so his argument concerning the social contract and the nature of men's
relationship to authority are consequently quite different. While Locke uses
Hobbes’ methodological device of the State of Nature, as do virtually all
social contract theorists, he uses it to a quite different end. Locke’s
arguments for the social contract, and for the right of citizens to revolt
against their king were enormously influential on the democratic revolutions
that followed, especially on Thomas Jefferson, and the founders of the United
States.

According to Locke, the State of Nature, the natural condition of mankind, is

a state of perfect and complete liberty to conduct one's life as one best sees
fit, free from the interference of others. This does not mean, however, that it
is a state of license: one is not free to do anything at all one pleases, or even
anything that one judges to be in one’s interest. The State of Nature,
although a state wherein there is no civil authority or government to punish
people for transgressions against laws, is not a state without morality. The
State of Nature is pre-political, but it is not pre-moral. Persons are assumed
to be equal to one another in such a state, and therefore equally capable of
discovering and being bound by the Law of Nature. The Law of Nature, which
is on Locke’s view the basis of all morality, and given to us by God,
commands that we not harm others with regards to their "life, health, liberty,
or possessions" (par. 6). Because we all belong equally to God, and because
we cannot take away that which is rightfully His, we are prohibited from
harming one another. So, the State of Nature is a state of liberty where
persons are free to pursue their own interests and plans, free from
interference, and, because of the Law of Nature and the restrictions that it
imposes upon persons, it is relatively peaceful.

The State of Nature therefore, is not the same as the state of war, as it is
according to Hobbes. It can, however devolve into a state of war, in
particular, a state of war over property disputes. Whereas the State of
Nature is the state of liberty where persons recognize the Law of Nature and
therefore do not harm one another, the state of war begins between two or
more men once one man declares war on another, by stealing from him, or
by trying to make him his slave. Since in the State of Nature there is no civil
power to whom men can appeal, and since the Law of Nature allows them to
defend their own lives, they may then kill those who would bring force
against them. Since the State of Nature lacks civil authority, once war begins
it is likely to continue. And this is one of the strongest reasons that men have
to abandon the State of Nature by contracting together to form civil
government.

Property plays an essential role in Locke's argument for civil government and
the contract that establishes it. According to Locke, private property is
created when a person mixes his labor with the raw materials of nature. So,
for example, when one tills a piece of land in nature, and makes it into a
piece of farmland, which produces food, then one has a claim to own that
piece of land and the food produced upon it. (This led Locke to conclude that
America didn’t really belong to the natives who lived there, because they
were, on his view, failing to utilize the basic material of nature. In other
words, they didn’t farm it, so they had no legitimate claim to it, and others
could therefore justifiably appropriate it.) Given the implications of the Law
of Nature, there are limits as to how much property one can own: one is not
allowed to take more from nature than one can use, thereby leaving others
without enough for themselves. Because nature is given to all of mankind by
God for its common subsistence, one cannot take more than his own fair
share. Property is the linchpin of Locke’s argument for the social contract
and civil government because it is the protection of their property, including
their property in their own bodies, that men seek when they decide to
abandon the State of Nature.

According to Locke, the State of Nature is not a condition of individuals, as it

is for Hobbes. Rather, it is populated by mothers and fathers with their
children, or families - what he calls "conjugal society" (par. 78). These
societies are based on the voluntary agreements to care for children
together, and they are moral but not political. Political society comes into
being when individual men, representing their families, come together in the
State of Nature and agree to each give up the executive power to punish
those who transgress the Law of Nature, and hand over that power to the
public power of a government. Having done this, they then become subject
to the will of the majority. In other words, by making a compact to leave the
State of Nature and form society, they make “one body politic under one
government” (par. 97) and submit themselves to the will of that body. One
joins such a body, either from its beginnings, or after it has already been
established by others, only by explicit consent. Having created a political
society and government through their consent, men then gain three things
which they lacked in the State of Nature: laws, judges to adjudicate laws,
and the executive power necessary to enforce these laws. Each man
therefore gives over the power to protect himself and punish transgressors
of the Law of Nature to the government that he has created through the
compact.

When the executive power of a government devolves into tyranny, such as

by dissolving the legislature and therefore denying the people the ability to
make laws for their own preservation, then the resulting tyrant puts himself
into a State of Nature, and specifically into a state of war with the people,
and they then have the same right to self-defense as they had before
making a compact to establish society in the first place. In other words, the
justification of the authority of the executive component of government is
the protection of the people’s property and well-being, so when such
protection is no longer present, or when the king becomes a tyrant and acts
against the interests of the people, they have a right, if not an outright
obligation, to resist his authority. The social compact can be dissolved and
the process to create political society begun anew.

Because Locke did not envision the State of Nature as grimly as did Hobbes,
he can imagine conditions under which one would be better off rejecting a
particular civil government and returning to the State of Nature, with the aim
of constructing a better civil government in its place. It is therefore both the
view of human nature, and the nature of morality itself, which account for
the differences between Hobbes' and Locke’s views of the social contract.

3. Jean-Jacques Rousseau

Jean-Jacques Rousseau, 1712-1778, lived and wrote during what was

arguably the headiest period in the intellectual history of modern France--the
Enlightenment. He was one of the bright lights of that intellectual movement,
contributing articles to the Encyclopdie of Diderot, and participating in the
salons in Paris, where the great intellectual questions of his day were
pursued.

Rousseau has two distinct social contract theories. The first is found in his
essay, Discourse on the Origin and Foundations of Inequality Among Men,
commonly referred to as the Second Discourse, and is an account of the
moral and political evolution of human beings over time, from a State of
Nature to modern society. As such it contains his naturalized account of the
social contract, which he sees as very problematic. The second is his
normative, or idealized theory of the social contract, and is meant to provide
the means by which to alleviate the problems that modern society has
created for us, as laid out in the Second Discourse.

Rousseau wrote his Second Discourse in response to an essay contest

sponsored by the Academy of Dijon. (Rousseau had previously won the same
essay contest with an earlier essay, commonly referred to as the First
Discourse.) In it he describes the historical process by which man began in a
State of Nature and over time ‘progressed' into civil society. According to
Rousseau, the State of Nature was a peaceful and quixotic time. People lived
solitary, uncomplicated lives. Their few needs were easily satisfied by nature.
Because of the abundance of nature and the small size of the population,
competition was non-existent, and persons rarely even saw one another,
much less had reason for conflict or fear. Moreover, these simple, morally
pure persons were naturally endowed with the capacity for pity, and
therefore were not inclined to bring harm to one another.

As time passed, however, humanity faced certain changes. As the overall

population increased, the means by which people could satisfy their needs
had to change. People slowly began to live together in small families, and
then in small communities. Divisions of labor were introduced, both within
and between families, and discoveries and inventions made life easier, giving
rise to leisure time. Such leisure time inevitably led people to make
comparisons between themselves and others, resulting in public values,
leading to shame and envy, pride and contempt. Most importantly however,
according to Rousseau, was the invention of private property, which
constituted the pivotal moment in humanity's evolution out of a simple, pure
state into one characterized by greed, competition, vanity, inequality, and
vice. For Rousseau the invention of property constitutes humanity’s ‘fall from
grace’ out of the State of Nature.

Having introduced private property, initial conditions of inequality became

more pronounced. Some have property and others are forced to work for
them, and the development of social classes begins. Eventually, those who
have property notice that it would be in their interests to create a
government that would protect private property from those who do not have
it but can see that they might be able to acquire it by force. So, government
gets established, through a contract, which purports to guarantee equality
and protection for all, even though its true purpose is to fossilize the very
inequalities that private property has produced. In other words, the contract,
which claims to be in the interests of everyone equally, is really in the
interests of the few who have become stronger and richer as a result of the
developments of private property. This is the naturalized social contract,
which Rousseau views as responsible for the conflict and competition from
which modern society suffers.

The normative social contract, argued for by Rousseau in The Social Contract
(1762), is meant to respond to this sorry state of affairs and to remedy the
social and moral ills that have been produced by the development of society.
The distinction between history and justification, between the factual
situation of mankind and how it ought to live together, is of the utmost
importance to Rousseau. While we ought not to ignore history, nor ignore the
causes of the problems we face, we must resolve those problems through
our capacity to choose how we ought to live. Might never makes right,
despite how often it pretends that it can.

The Social Contract begins with the most oft-quoted line from Rousseau:
"Man was born free, and he is everywhere in chains" (49). This claim is the
conceptual bridge between the descriptive work of the Second Discourse,
and the prescriptive work that is to come. Humans are essentially free, and
were free in the State of Nature, but the ‘progress' of civilization has
substituted subservience to others for that freedom, through dependence,
economic and social inequalities, and the extent to which we judge ourselves
through comparisons with others. Since a return to the State of Nature is
neither feasible nor desirable, the purpose of politics is to restore freedom to
us, thereby reconciling who we truly and essentially are with how we live
together. So, this is the fundamental philosophical problem that The Social
Contract seeks to address: how can we be free and live together? Or, put
another way, how can we live together without succumbing to the force and
coercion of others? We can do so, Rousseau maintains, by submitting our
individual, particular wills to the collective or general will, created through
agreement with other free and equal persons. Like Hobbes and Locke before
him, and in contrast to the ancient philosophers, all men are made by nature
to be equals, therefore no one has a natural right to govern others, and
therefore the only justified authority is the authority that is generated out of
agreements or covenants.

The most basic covenant, the social pact, is the agreement to come together
and form a people, a collectivity, which by definition is more than and
different from a mere aggregation of individual interests and wills. This act,
where individual persons become a people is "the real foundation of society"
(59). Through the collective renunciation of the individual rights and freedom
that one has in the State of Nature, and the transfer of these rights to the
collective body, a new ‘person', as it were, is formed. The sovereign is thus
formed when free and equal persons come together and agree to create
themselves anew as a single body, directed to the good of all considered
together. So, just as individual wills are directed towards individual interests,
the general will, once formed, is directed towards the common good,
understood and agreed to collectively. Included in this version of the social
contract is the idea of reciprocated duties: the sovereign is committed to the
good of the individuals who constitute it, and each individual is likewise
committed to the good of the whole. Given this, individuals cannot be given
liberty to decide whether it is in their own interests to fulfill their duties to
the Sovereign, while at the same time being allowed to reap the benefits of
citizenship. They must be made to conform themselves to the general will,
they must be “forced to be free” (64).

For Rousseau, this implies an extremely strong and direct form of

democracy. One cannot transfer one's will to another, to do with as he or she
sees fit, as one does in representative democracies. Rather, the general will
depends on the coming together periodically of the entire democratic body,
each and every citizen, to decide collectively, and with at least near
unanimity, how to live together, i.e., what laws to enact. As it is constituted
only by individual wills, these private, individual wills must assemble
themselves regularly if the general will is to continue. One implication of this
is that the strong form of democracy which is consistent with the general will
is also only possible in relatively small states. The people must be able to
identify with one another, and at least know who each other are. They
cannot live in a large area, too spread out to come together regularly, and
they cannot live in such different geographic circumstances as to be unable
to be united under common laws. (Could the present-day U.S. satisfy
Rousseau’s conception of democracy? It could not. ) Although the conditions
for true democracy are stringent, they are also the only means by which we
can, according to Rousseau, save ourselves, and regain the freedom to which
we are naturally entitled.
Rousseau's social contract theories together form a single, consistent view of
our moral and political situation. We are endowed with freedom and equality
by nature, but our nature has been corrupted by our contingent social
history. We can overcome this corruption, however, by invoking our free will
to reconstitute ourselves politically, along strongly democratic principles,
which is good for us, both individually and collectively.