Front Page Titles (by Subject) Contract and Political Thought - Literature of Liberty, July/September 1979, vol. 2, No. 3
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Contract and Political Thought - Leonard P. Liggio, Literature of Liberty, July/September 1979, vol. 2, No. 3 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Contract and Political Thought
“The history of Contract as a Motif in Political Thought.” The American Historical Review 4 (October 1979): 919–944.
The idea of contract has of course been crucial in the development of theories concerning liberty. The history of contract has been impeded, however, by a false paradigm elaborated by Otto von Gierke, which has dominated scholarly inquiry on this topic. Gierke's model should be replaced by one which emphasizes the linguistic and historical context of the various contractarian authors. We need to devote special care in determining what actually constitutes social contract.
Gierke, in his great work Das deutsche Genossenschaftsrecht, which appeared between 1868 and 1913, judged writers on contract by the extent to which they approximated an ideal model. The model contained two contracts: (1) a social contract establishing a government, founded upon the natural rights of individuals; and (2) a contract of lordship, in which the already constituted society determined its form of government.
Although the social contract was logically prior to the contract of lordship, it in fact succeeded it historically. Many medieval writers, Gierke claimed, accepted the notion of a contract of lordship and it had become by the early modern period a commonplace of discussion. What was new was the contention that society itself rested upon contract, a theory which Gierke found most elaborately developed by Althusius.
Gierke's overemphasis upon the dual contract ideal as an ideal model misleads him into downplaying authors such as Hobbes and Rousseau who do not adhere to it, even though they are major figures in the history of the idea of contract. Gierke often anachronisticaly judges (and misreads) writers by how they conform to a model which had not been formulated at all at the time they wrote. His misuse of evidence is especially apparent in his treatment of the sixteenth-century Spanish scholastics such as Suarez. Also, although Gierke regards Althusius' work as the culmination of the idea of contract, he is forced to admit that later writers did not accept the allegedly essential points of the ideal model of contract which Althusius had developed.
If Gierke's paradigm is abandoned, one can see that the view of contract held, for example, by the French Huguenots in the sixteenth century was not a contract theory as that term is understood today. Mornay, the probable author of the Vindiciae contra tyrranos (1579), postulated two contracts: (1) one between the king, the people, and God; and (2) the other between the king and people by themselves. He did not, however, believe that the institution of monarchy had been established on a contractual basis.
Similarly, the Calvinist theologians such as Theodore de Bèze who wrote on the issue of resistance emphasized the role of the fundamental laws of the kingdom, which were non-contractual. Even Gierke's great exemplar Althusius, although he did indeed found social institutions on contract, did not maintain that it was individuals who made the contracts. On the contrary, families and associations were the proper parties in a contract.
The connection between contracts and individual rights was first made by the English Levellers of the seventeenth century, such as Richard Overton. They did not have a notion of the state of nature, however; this was an innovation of Thomas Hobbes. The Hobbesian doctrine did not supplant the earlier ideas of a constitutional contract, in which some fundamental laws and institutions were held to lack a contractual basis. Both doctrines may be found, for example, in the work of John Locke.