Throughout history and in modern society, the relationship between law and justice has been examined and debated resulting in the creation of various theories attempting to outline systems of a just society. Some of these theories revolve around a central notion of a ‘social contract’ in which society is formed through a theoretical agreement between a group of people about their moral and political obligations. This concept has been used by theorists such as Mill and Rousseau, to explain why the law is justified in its right to constrain the behaviour of individuals and organisations in society.
Later in the twentieth century, John Rawls took a novel stance on the concept of the social contract, in which principles of justice were defined for an ‘ideal society’. As such, these principles may offer good moral reasons to comply willingly with the law. However, more recently there have been criticisms by feminists that the social contract does not paint a complete picture of our moral and political lives and instead has, in some ways, assisted in giving more power over certain classes of people (Friend, 2006).
In this essay I will evaluate the original notions of the social contract in order to demonstrate how the social contract regulates behaviour and has also, in its conceptualisation, subjugated some aspects of society through its unequal representation. I will then explore John Rawls’ ‘Principle’s of Justice’ and discuss whether, if Rawls hypothetical situation could be implemented, it would provide good moral reason to comply with the law.
The development of the social contract arose out of a ‘state of nature’ in which the need for an arrangement of societal order evolved when humanity faced changes in which the population increased and so society’s mechanisms for survival were also increased. An introduction of a division of labour became present that bought about new inventions developing an easier lifestyle with more leisure time (Friend, 2006). In particular, Rousseau placed an emphasis on the invention of private property, which saw a change from a simple pure state to one characterised by greed, competition, vanity and inequality (Friend, 2006).
As the rich had property, others were forced to work for them, and the development of social classes began (Friend, 2006). As the idea of the social contract continued to evolve, Rousseau developed an idea which is commonly known as the ‘general will’. For Rousseau, the social contract contains a ‘general will theory’ which revolves around the idea of a ‘good’ agreement, which in turn facilitates real civil liberty and a legal and moral equality that transcends all natural disadvantages found in the state of nature (Coole, 1993: 79).
Rousseau connects his idea of the general will to the concept that the social contract is a legitimate principle of political organisation by emphasising that the purpose of politics is to restore freedom to all (Coole, 1993: 80). Therefore the most essential philosophical problem that the social contract intends to address is; how can we live together without succumbing to the force and coercion of others? (Friend, 2006). Rousseau’s response to this indicates that by submitting our individual wills to the general will created by an agreement from equal people, we can be free and live together (Friend, 2006).
Furthermore, philosophers such as Hobbes and Locke, present before Rousseau, put forward that all men are made to be equal, therefore giving no man the right to govern others, the only justified authority is that generated from agreements, such as the social contract (Friend, 2006). Thus these agreements justify the right of the law to constrain the acts and wills of individuals. Yet, the wills of individuals are not represented equally throughout the social contract.
The theory has based its premises upon the idea that citizens are male and the model of a person who enters into the social contract is male, denying the fact that the theory suggests it speaks for all people (Study Guide, 36). There are three main theorists who can be associated with the gender inequalities evident within the social contract, Hobbes, Locke and Rousseau. However, a distinct difference between these theorists is that Rousseau is quite clear that there is a natural difference between men and women, whereas Hobbes and Locke have preferred not to commonly mention women in their writings.
Hobbes and Locke hold a similar account towards the social contract, in the sense that they both express that men are more capable, strong and naturally fitter than women, especially for actions such as danger and labour (Coole, 1994: 193). As Rousseau defines female qualities as different to males, it is obvious that the social contract represents different wills for males and females (Study Guide, 28). As such, it should be questioned as to whether it should be used as a justification for the law when such inequalities exist within it.
Women are presented as only a means of providing love and care for their families in order to develop male citizens who will be a benefit for the state, yet they also are subject to the same law that was created through the social contract. Understanding that there are inequalities already existing in the notion of the social contract it is necessary to assess whether it actually provides a moral basis and reason for the law to constrain the rights of men and women. Laws are put forward to keep a society or an organisation functioning effectively and efficiently, with the interests of the members of society put first.
However, everyone is different and therefore not everyone’s needs are fulfilled. Philosopher John-Stuart Mill elaborated on this thought with his idea of individualism. Mill states that he has his own feelings, and experiences and no one else can know what they are exactly like. Therefore he is the only one who can be justified for making decisions about his interests. For this reason, Mill insists that rational individuals should be free to make their own decisions in life (Study guide, 14). Mill’s theory, as one would think, is quite legitimate as obviously everyone should be happy and exposed to freedom.
However, if Mills theory were in place, there would be no laws for society and everyone would be able to do what they like, possibly resulting in a world of havoc. The social contract does provide reason for the law to constrain the behaviour of individuals, in terms of keeping a general consensus of happiness and a well functioning society. Arguments have been presented by Mill that suggests that morality lies in a society where each individual’s personal liberty and freedom is regarded as the highest moral value (Study guide, 11).
The idea of personal liberty, or personal autonomy, is in regard to one knowing what makes them happy, however also knowing that they are not entitled to freely do this satisfying action because their actions may negatively affect or interfere with another person’s attempt to live a good life (Study guide, 15). Liberalism states that people must determine for themselves what a legitimate use of power is; this is where democracy (the best form of political organisation) is introduced in that the government itself is a representative of the wills of the people.
Therefore in terms of the social contract, justification for the law to constrain society is evident because people are abiding by a law in which they gave up their natural freedom for, resulting in a moral society where the consequences of one’s actions are considered before being performed. However, there are arguments that disagree with the social contract, aside from the feminists view, especially in the works of Will Kymlicka. Kymlicka puts forward that the only progression society has experienced from the state of nature is that morality is now concerned with a group power, rather than an individual power (Study Guide, 48).
He argues that a society is only formed if people are roughly equal in terms of power, yet we are all different and therefore if one is more powerful than another they would only be likely to give that position up in return for a mutually beneficial behaviour (Study Guide, 39). Although if people did not make the sacrifice of their own freedom for a more moral society a social contract would not be formed and evolution from the state of nature to society could not occur.
The concept of the state of nature, developed by earlier theorists such as Rousseau, has been replaced more recently with a hypothetical situation developed by John Rawls. This hypothetical situation replaces the state of nature with a more optimistic situation, termed by Rawls, as the original position, which contains the perfect elements for the natural development of justice. This development of justice, within the hypothetical situation, provides good moral reason to comply with the laws (Study Guide, 51).
The representatives of the citizens in this theoretical system would have no predetermined knowledge of the people they would be representing. They would be under a ‘veil of ignorance’ and therefore, the difference between the financial success, social status, gender, ethnicity, and natural abilities of each person within the system would no longer play any role in the social interaction and decisions of the representatives (Study guide, 52). Thus any laws that were developed would be done so under this veil of ignorance
resulting in the abolition of discrimination within the laws, providing a good moral reason to comply with them. It is Rawls’ belief that the representatives of the people who are under the veil of ignorance in the original position would eventually begin to implement the principle of ‘maximum rule’ as a tool for assessing any potential situation that may arise (Study Guide, 61). In other words, the representatives of the citizens would seek to make decisions that would result in the maximum amount of payoff if and when the worst situations were to occur (Study Guide, 61).
Thus, a type of social equality in which all persons within the system acquire as much social goods as is allowed in the worst possible outcome. In this way, any laws that would be developed would be put in place to have the maximum amount of payoff and prevent the worst situations to occur. Although John Rawls’ philosophy advocates a fair and free system in which social and economic differences amongst the citizens are meant to be invisible, these differences still inevitably exist.
Rawls outlines two more principles that must be achieved in order for these inequalities to exist without corrupting the potential system and the laws within it (Study Guide, 57). The first principle, known as the ‘liberty principle’, establishes that all persons must have the greatest degree of liberty and that it be compatible with the liberty of all (Friend, 2006). Although the liberty principle does not deal directly with any of the potential future inequalities within the law and society that might arise, it is an essential tool in understanding Rawls’ goal of creating some degree of equality amongst groups.
It sets the foundation for a potential system in which all persons maintain not only the right to be free, but more importantly, who maintain the right to be as equally free as everyone else within that very same system (Study Guide, 58). Thus any laws that are developed must keep within this principle and as such it creates a good moral basis to comply with them. The second principle that Rawls establishes as a necessary tool for combating inequality, and thus creating sound moral basis for complying with the law, is known as the difference principle (Study Guide, 58).
The difference principle states, firstly, that all positions are to be open to all under fair equality of opportunity regardless of such attributes as wealth, social standing, ethnicity, gender, and natural abilities and secondly that unequal distribution is only acceptable if the inequality benefits those who are the worst off within the society (Friend, 2006). As Friend (2006) nicely summarised ‘Only if a rising tide truly does carry all boats upward, can economic inequalities be allowed for in a just society.
’. Therefore, the law under these conditions would help those in the worst positions to climb higher and prevent those in the highest positions from gaining more than their share. The laws under these Principles of Justice would in effect help create an almost utopian society, one vastly different to the conceptualisations of the early social contracts. With the inequalities so blatantly existent in the early conceptions of the social contract it is unwise to use it as a justification for some of the unjust and often unfounded impositions the law places on society.
Instead perhaps we should look to John Rawls’ Principles of Justice as a guide for the development of society. However, although the principles do provide adequate moral reasons to comply willingly with the law, it is based on a hypothetical situation, one which we could never hope to achieve. Thus as a guideline they can only ever be. References Boucher, D. , & Kelly, P (ed. ) 1994, The Social Contract from Hobbes To Rawls, Routledge, London & New York. Friend, C. 2006, “Social Contract Theory”, from the Internet Encyclopedia of Philosophy.
http://www. iep. utm. edu/s/soc-cont. htm first accessed on 29/7/08. Coole, D. 1994 ‘Women gender and Contract’, in Boucher & Kelly (eds), The Social Contract From Hobbes to Rawls, Routledge, London & New York. Coole, D (ed. ) 1993, Women in Political Theory from ancient Misogyny to Contemporary Feminisim, 2nd edn, Harvester Wheatsheaf, Hertfordshire. Law, Society and Morality, HPA 242/342. Study Guide, 2008. Pateman, C. , & Gross, E (ed. ) 1986, Feminist Challenges Social and Political Theory, Allen & Unwin, Sydney.