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SOCIAL CONTRACT - John Joseph Lalor, Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States, vol. 3 Oath - Zollverein 
Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States by the best American and European Authors, ed. John J. Lalor (New York: Maynard, Merrill, & Co., 1899). Vol 3 Oath - Zollverein
Part of: Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States, 3 vols.
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SOCIAL CONTRACT. Is society a human institution? or, is it of natural institution? these are the two questions which must be solved in order to form a clear and exact idea of the rights and duties of man in the civil and political order. Of course I here suppose that man is a free being for every system that denies human freedom thereby denies the possibility of a binding moral law. I suppose it to be admitted, also, that there is an order of the universe, for otherwise creation would be unintelligible, and the destiny of man an enigma; that this order is so imperious that every reasonable creature should respect it and accomplish it in himself and out of himself, which gives his rights and duties the sanction of natural law. Non scripta lex, sed nata. I suppose, finally, that the conception of the ideas of liberty, order and harmony, however high they may be, and precisely perhaps because they are high, are not the final term of human intelligence; that these ideas cause him to take one more step and lift him to the very substance of universal order, to God who gave to each being its constitution and its end.
—If I am met by a refusal to admit these hypotheses as the bases of my investigation, I declare myself powerless, I will not say to solve, but even to discuss, the problem placed before me, for, as a man can not walk on the ground without a point of support, neither can the intelligence move if the very bases of all reason are lacking it. I affirm, therefore, the existence of two laws: one natural, or divine; the other positive, or human; the former immutable, the second variable; from this distinction flows the solution of the problem of man and society.
—God, when creating man, gave him a nature proper to himself. By reason of this nature relations are established between him and his fellows which bind them together and form of them a whole, which is the social state. Society is, therefore, the aggregate of the different being bound together by the relations which spring from their respective natures, and which constitute the law of order. Hence the obligation of every reasonable and free being to regulate his conduct in conformity with these relations. This is what Montesquieu has so well expressed in the following definition, which is a flash of genius: "Laws are the necessary relations which spring from the nature of things". And he indicates by the following phrase what he understands by necessary relations: "Before there were intelligent beings, such beings were possible; they had, therefore, relations, and, consequently, possible laws". In fact, a thing to which laws could not be given would not be a possible thing. Then Montesquieu adds: "God made these laws, because they have a relation to his wisdom and his power". Hence the consequence that when man was created, he was created for society, which was a necessary, fundamental law of his nature; for he was not created alone, he found himself face to face with a being similar to himself, and directly of these two beings there was one of them who owed something to the other, and another to whom something was due. Thence arose immediately between these two beings the right and duty which followed from their respective natures, which last, being equal and identical, necessarily engender equal rights and duties.
—I therefore most energetically deny the social contract in so far as it is affirmed to be a pact entered into at the origin of human society to establish its laws. It was nature, or rather Providence, that willed the establishment of society; it was the wants of man which afterward made the laws after the notions of a superior law, which speaks to the heart of all men, the divine imprint of which is found everywhere the same. "Nec erit", says Cicero, "alia lex Romœ, alia Athenis, alia nune, alia posthac, sed etomnes gentes et omni tempore una lex et sempiterna et immortalis continebit". If this law sometimes varies among different nations, it always retains that which is of its essence. Burke expressed the same idea when he said that there are in nature sources of justice from which civil laws flow like so many streamlets; and that just as waters take the tint and the taste of the soils through which they run, civil laws vary with the regions and the governments of different countries, although they all proceed from the same source.
—The hypothesis of an anti-social state, and of an organization of society according to an agreement entered into, is a system in contradiction with the nature and destiny of man; it would logically imply the right to break the contract, for the benefit of the contracting parties, should it become inconvenient or burdensome to them and to leave the bosom of society to return to the state of nature, which would be the negation of the sacred and eternal idea of order toward which all free and reasonable creatures inevitably gravitate, and also the negation of an obligatory law anterior and superior to the wills or caprices of man.
—Hobbes was the first modern philosopher who professed the doctrine of a state of nature anterior to the social state; man left this state of nature only because it was a state of war; whence the celebrated axiom, "War is the state of nature". But what is society in such a system? It is the creation of a force great enough to substitute peace for war. Peace, therefore, being the end of society, it follows that there are two modes of the formation, or two possible origins, of society. The first is the contract by which a collection of men, or of families, agree to constitute a force superior to individual forces, a force capable of crushing them out and thus of establishing peace at any price. The second mode is to lose no time in collecting the votes of persons interested in putting an end to the state of war, to enter into this so necessary contract. It is sufficient that a man, by force or artifice, succeed in establishing his power over a collection of men, and be able to maintain it, in order to establish straightway the social bond. The right of the stronger establishes this bond as completely as a contract. And this latter method is even the better form of society; for power concentrated in a single hand, affords more guarantees of strength and durability, and is consequently more perfect; its mission being to crush out all individual forces by all possible means, and to maintain the state of peace by the destruction of the state of war which is found in the existence of individual forces; hence the more unlimited power is, the better it is. From this it follows that all limitation is contrary to the end of power and of society, and that, whatever the despot may wish, it is the duty of his subjects to obey, and they have no right to resist. such, in a few words, is the celebrated system of Hobbes.
—Admitting that men are really what Hobbes pretends they are, that is, famished wolves which devour each other—homo homini lupus—it might be maintained against him that the contract which binds them tpgether, whether based on consent or on force, could have no possible existence. The laws would be merely heavy chains, and the sole aspiration of each and every individual would be to break them, to escape from his cage and rush on the chief chosen or imposed on him, who would soon and necessarily succumb to numbers. Whatever be the opinion held concerning the original nature of man, it is evident that the consequences which Hobbes draws from his premises are open to discussion, since, starting from the same point, J. J. Rousseau arrives at opposite conclusions.
—Rousseau consider the state of nature as the ideal of man, and the social state as a contract state. Nature, therefore, "took little care to bring men together by mutual wants; she did little to pave the way for society; she put little of her own into all that men have done". Nevertheless, Rousseau acknowledges that the social state was an advance on the state of nature; he admits that, instead of destroying natural equality, the fundamental pact, on the contrary, substituted a moral and legitimate equality for whatever inequality nature might have placed among men, and that, it being possible for them to be unequal in force or in genius, they all become equal by convention and of right. Thus the contract was entered into to the improvement of the lot of humanity. Not that the law of nature is not superior to positive law, for it comes from God. "Whatever is good and conformable to order is such by the nature of things and independently of human conventions. All justice comes from God, he alone is its source; but if we knew how to receive it from so exalted a source we would need neither government nor law. Doubtless there is a universal justice emanating from reason alone; but this justice, to be admitted by us, must be reciprocal. To look at things from a human point of view, in default of a natural sanction, the aws of justice are powerless among men. * * Therefore conventions and laws are necessary to unite rights to duties, and restore justice to its object".
—We now perceive the profound difference between the system of Rousseau and that of Hobbes. Rousseau elevates man; Hobbes degrades him. The former leads to liberty; the latter to despotism. Applied to governments, the philosophy of Hobbes creates in the bosom of political society the domination of a single will. Around this will are grouped the instruments of obedient and blind forces, which it moves as it pleases. The general will must become an immense holocaust; the caprice of a single man must lead and govern all. It is the image under which we may represent Satan, that rebel angel, seeking eternally to combat against light, that is to say, liberty. Such a system would be the greatest degradation of humanity, a really infernal work from which Christ has saved the world. It is useless for Hobbes to say that power, such as he conceived it, is alone capable of ending the state of war which is at the foundation of society. The society which he depicts is not a hive of men, but a den of wild beasts. The despot whom Hobbes places at the summit of his edifice, far from giving energy to the sentiments which constitute the dignity of the human race, would seek, on the contrary, to stifle them. Liberty! he would dread its smallest spark; for everything must be a piece of mechanism, the motive power of which is held by one. The condition of the subject is to obey; the right of commanding belongs to the despot alone; the man who deliberates is from that very fact a rebel. The certain effect of the arts and sciences is to elevate man's immortal soul, and to give it noble aspirations; the despot is careful to prevent the growth of these aspirations: he therefore paralyzes public education. Under this régime equality is an unknown word; favor is everything, merit nothing. Security does not exist. Everything belongs to the sovereign master—person and property. This want of security destroys all culture, all emulation, all industry. The object being to inspire terror, the severity of penalties bears no proportion to the crimes committed. No; this strong power, which Hobbes praises, can never found a prosperous and peaceful society, for despotism is not a creative but a destructive force.
—Strange contradiction between two philosophers, two thinkers of rare power! while Hobbes deduces from the social contract which he imagines the despotic type, Rousseau infers from it the democratic type. Reason, good sense, if we were obliged to admit this pretended contract, would evidently be on the side of the French philosopher as against the English philosopher; for it is difficult to suppose that men would come together, to agree on a social state which, instead of making them free citizens, would turn them into slaves. Rousseau imagines a people who gives themselves laws, in which they realize all their powers as an artist of genius does in his domain. Tendencies are free in it, objects free, actions free. Proportions are perfectly expressed in that empire. Each organ is a complete whole, which preserves its integrity in the sphere in which it moves. It has its specific force in accordance with which it exercises the functions entrusted to it, though it still obeys a general law, from which, in the aggregate, there results a simple and magnificent harmony. Such is the ideal of Rousseau as opposed to that of Hobbes.
—Why have Hobbes and Rousseau, in starting from the same point, arrived at results so different? Because both constructed a work, not of reason, but of imagination. Instead of constructing this marvelous product called society from the immutable elements of humanity, they constructed it of the changing elements of history. Hobbes lived at the time of the great English revolution. Chance, and perhaps his character, threw him into the party of absolute right. He was the head of a prince he loved fall under the rage of factions. The sight of the revolution and of its excesses stirred his soul. He thought he beheld the dissolution of society, because he witnessed the birth of a new order of things. He concluded from this that a power strong and able to command the waves was necessary in order to curb the popular flood. Rousseau had under his eyes the exact opposite of this. He had seen royalty abusing its power, oppressing peoples, living by the sweat of the people's brow, exhibiting every species of immorality and scandal. Right, everywhere ignored, needed an avenger. Rousseau became this avenger, and thereby lost his country. Hobbes and Rousseau started from a false principle; they ignored the rules of natural law, and they expiated their error by the low estimation into which their doctrines have fallen in the eyes of posterity. Instead of going astray in the regions of the imagination in order to find the origin of society, it would be much simpler to say, with a modern philosopher: "The society of beavers is formed by virtue of the laws of the nature of beavers; the society of men is formed by virtue of the laws of human nature; to reach the true idea of the formation of human society, we must therefore start with a true idea of human nature; all light is there; beyond that, there is nothing but hypotheses and contradictions". Let us therefore seek that light.
—The right considered in its root and its ultimate reason can be found neither in the world of sense nor in the sphere of experience and of history. Right in itself is eternal; it is independent of manners and customs, of religions and climates. Owing to this independence it must extend its sceptre over all the earth, without distinctions of epochs or races. Thus is explained the sovereign power of law. Thus is explained the sovereign power of law. From the fact that law exists, it follows that there is a being to whom it applies, and that that being is a man, that is to say, a moral being, with reason and freedom, and not a brute outside the bounds of reason and of liberty. Now, the sphere of the application of law or right is society. Society, then, is contemporary with man. Why did man institute this power, this product? It was not alone from the point of view of his security. The right to security originates the moment that a certain number of men have taken possession of a corner of the earth, and are confronted by the same wants and dangers. Side by side with the ideal of right and law, there is the ideal of duty. A society has of necessity, from its birth, moral rules which precede positive law, and which may be summed up as follows: Law or right, like duty, spring from conscience, and consequently whatever wounds the conscience is neither a right nor a duty. Freedom as a source of action, is the foundation of right and duty, that is to say, of morality. The circle of rights and duties is as broad as that of the necessary relations which may bind together free beings. Society having an object, each one of its members should divest himself of the rights the personal and independent exercise of which would hinder society from attaining this object. He should accept all the duties which society imposes on him for the attaining of this object; for there would be no society, properly speaking, where there was no constraining power to compel co-operation to attain the final object of society.
—Considered from this point of view, society is as eternal as right, as conscience. History shows us great catastrophes, nations and races which have been swallowed up in the abyss of time; the earth also shows us on every side traces of great physical revolutions, which have ravaged, transformed and renewed it; in like manner the present division of nations bears witness to great political perturbations, which at different times so profoundly influenced the destinies of nations; we everywhere tread on ruins and funeral couches. But did society itself ever perish? Did not its living and sacred image always escape destruction? When Troy, abandoned to the flames, was about to become a pile of ashes, Eneas fled, bearing with sadness into exile the venerated images which represented immortal society, and approaching a new land, he cried out: "Italiam! Italiam!" then, placing his precious relics on a fruitful soil, he founded Rome, the future heiress of the world. Civilizations are thus superimposed one upon another, are amalgamated together, are made or unmade, advance or recede; but society, and an ever better society, rises always up amid the ruins of extinct civilizations, because society is above civilization itself.
—If society were the result of a contract, it might be dissolved by withdrawing the consent which formed it. Otherwise there would be an implied contradiction. Do we not see then what an upheaval would result from such a state of affairs? Do we not see the perturbation that would be caused in the scale of rights and duties? Do we not see that binding moral law would disappear from the world, and that the social force would disappear before individual force? If men who had learned all the advantages of social life, renounced it at once, and retired into forests and deserts, these men would obey the caprices of a disordered imagination and the inspirations of wandering reason, but we could not admit that they acted in virtue of a right. The state of society is therefore an impulse of the moral nature of man, and not the impulse of his intelligence; it is spontaneous, and not the result of deliberation. It comes from above, not from below; it is not of man, but of God, who, in creating man intelligent, also created the earth to satisfy the wants of his intelligent creature, and who distributed among the countries different products, in order to oblige men to exchange the different kinds of wealth of the countries they inhabit, in such a way that they might be forced to labor for each other, and that, from the selfish efforts of a single man, the good of all should necessarily flow, as the system of the universe results from the force of attraction.