What is Social Contract Theory in Philosophy and Law?
According to the Social Contract Theory, the emergence of laws, governance, and morality necessitates a transaction of reciprocity, equality, and consent, known as the rule of law. Therein, individuals are expected to band together through a system of mutual exchange in which each member has consented to join civilized society, with no single individual or institution being excluded from the rules dictated by law (Rachels, and Rachels 82-3). Despite certain differences in the social contract theories of philosophers Thomas Hobbes (1588-1679) and John Locke (1632-1704), both thinkers contended that contractual ethics and law only functioned when the rule of law was upheld (Rachels, and Rachels 82-5). Even though these theories exist and are well-known by law-makers, legislators, and politicians alike, many laws often fail to adhere to the rule of law nonetheless. One such example is Quebec’s Law 21, which prohibits individuals from wearing religious symbols when working in the public sector and when receiving public services (Loi noo 21).
The Right to Reciprocity and Law 21’s Violations of it
According to both Hobbes and Locke, the rule of law in contractual ethics is essential to ensuring the proper function of organized society (Rachels, and Rachels 82-3). Echoing Hobbes’ theory, Locke affirmed that “‘there only is Political Society where every one of the Members hath quitted this natural Power, resign’d it up into the hands of the Community in all cases that exclude him not from appealing for Protection to the Law established by it,” meaning that organized society can only be a product of reciprocity between the State and its constituents (Baumgold 41). In other words, the maintenance of rights, as provided by the State through its governance and its laws, in exchange for adherence to government and law by State members, must be applied universally. This is because the goal of the social contract is to establish a “permanent union between the contractors themselves,” and the government, “that will continue to bind the successors of the original contractors” (Boucher, and Kelly 39). The vitality of reciprocity, for Locke specifically, indicates that rebellion is inevitable if certain members under a given contract are not receiving the benefits promised to them by this system of mutual exchange. Rebellion thus becomes “the sole mechanism of governmental accountability” when the State fails to uphold the rights, protection, and equal benefits guaranteed to contract members, despite the submission of those members to the State’s laws (Baumgold 47).
As seen in the passing of Law 21 at the National Assembly in Quebec in June of 2019, not all political institutions abide by the rule of law’s principle of reciprocity, in which “the right [to] property in the sense of a mutually respected individual entitlement to ‘life, liberty and estate’” is meant to be guaranteed, according to both Hobbes and Locke (Baumgold 44). Law 21 explicitly violates the principle of reciprocity because it withholds certain freedoms from sects of the population who choose to wear religious symbols, despite the fact that the individuals in those sects are still adhering to the laws of the State. In other words, the State is not reciprocating the exchange of rights with a segment of the population that has consented to its laws.
More concerning is the fact that Law 21 also violates several clauses in the Quebec Charter of Human Rights and Freedoms. The law specifically violates sections 10, 15, 16, and 18 of the charter. In brief, section 10 ensures the right to liberties regardless of “ race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, [or] age,” section 15 prevents the inhibition of access to public services on the basis of discrimination, and sections 16 and 18 both inhibit discrimination in the workplace and in regards to employment (Section c-12). Hence, as Locke asserts that rebellion is “‘an Opposition, not to Persons, but Authority, which is founded only in the Constitutions and Laws of the Government,’” this government’s failure to offer practicing religious citizens the rights indicated in the Quebec Charter of Human Rights and Freedoms, while still expecting those individuals to adhere to the laws of the State, demonstrates a violation of the principle of reciprocity and necessitates a revolt by those whose rights have not been upheld (Baumgold 18). Charter of Human Rights and Freedoms
Law 21 and the Violation of Equality under Law Rights
Similarly, the principle of equality under social contract theory is essential to the functioning of civilized society because it ensures that governments do not discriminate between contract members. In fact, contractual ethics suggests that the “equality which is embodied in the contract theory is not [found in] man’s power to kill, but rather [in] the principle that all men are equally free” to uphold the same rights (Boucher, and Kelly 37). For both Hobbes and Locke, any government which denies rights to certain members of society “leav[es] them worse off than they would have been in the state of nature” and “explicitly violates the trust formed by individuals bargaining together under conditions of juridical freedom and equality” (Baumgold 54). And as in the case of a violation of reciprocity, any denial of the principle of equality warrants rebellion by contract consenters because, according to Locke specifically, this type of transgression creates an “illegitimate civil government [that] seeks to systematically violate the natural rights of its subjects,” makes those subjects “illegitimate slaves,” and thus “puts itself in a state of nature and a state of war with its subjects” (Tuckness).
Both Hobbes and Locke refer to the state of nature as the conditions of life prior to organized society. While Locke contends that humans reserve the rights to life, liberty, security, and property in this state, Hobbes’ state of nature is essentially a war of all against all, in which humans, and animals, constantly compete for resources. In both cases, the state of nature is inferior to organized society because civil order under the rule of law grants fundamental access to rights that humans would otherwise not have available to them (Rachels, and Rachels, 82-5).
Here too then, Law 21 violates social contract theory because in refusing to grant the right to religious freedom, the legislation discriminates against practicing religious citizens, and violates the principle of equality as a result. In fact, Locke presents an argument for religious toleration, whereby he “holds that the use of force by the state to get people to hold certain beliefs or engage in certain ceremonies or practices is illegitimate” (Tuckness). And though Locke meant to emphasize the importance of establishing a secular state, his insistence that governments be prevented from imposing beliefs upon their constituents, indicates that Law 21 violates social contract theory nonetheless for attempting to impose the belief of laicity upon Quebec residents (Loi noo 21). Consequently, because Law 21 fails to grant the right to religious expression, it intrinsically favours those who conform to the State’s imposed belief of secularism, while marginalizing those holding religious beliefs and denying them the right to equality by means of their inferior treatment. More than that, Locke specifically “states in the Two Treatises that the power of the Government is limited to the public good” because it is a power with “‘no other end but preservation,’” meaning it “cannot justify killing, enslaving, or plundering [its] citizens” (Uzgalis). Yet, Law 21 clearly plunders the right to religious freedom such that it clearly disregards the principle of equality under the rule of law.
Hobbes and Locke: Different Approaches to Contract Theory and Why these Differences Matter with the Case of Law 21
Although Hobbes and Locke generally model complementary theories, Locke places an emphasis on the importance of individuals to exercise rebellion when fundamental aspects of the rule of law—as seen in the case of Law 21—are being compromised, while Hobbes presents a more absolutist perspective. Indeed, Hobbes asserts the necessity of establishing an “absolute sovereign” in order to ensure the progression of civilized society (Lloyd, and Sreedhar). Whereas Locke affirms that, in any form of government, “rulers […] may be resisted if they act contrary to the trust reposed in them” (Baumgold14), Hobbes contends that a “‘dissolute condition of masterlesse men, without subjection to Lawes, and a coercive Power to tye their hands from rapine, and revenge’ [makes] impossible all of the basic security upon which comfortable, sociable, civilized life depends” (Llyod, and Sreedhar).
Therefore, it may be disputed that Hobbesian ethics values individual freedoms in as much as they conform to the rule of The Sovereign, thus leading to the supposition that Law 21 is not a violation of social contract theory, but rather an example of the right of The Sovereign of Quebec to invoke measures meant to ensure the protection of society at large. In fact, the government’s defense against the law, in reference to laicity, can be conflated with Hobbes’ “relentless secularism” and “his notion that the human constitution of a secular or temporal power, concerned wholly with external peace, security and earthly felicity, is itself the fulfilment of God’s purpose for man” such that the legislation may be considered as complementary to contractual ethical theories (Lloyd, and Sreedhar). However, while both Hobbes and Locke do advocate for a degree of state secularism, neither contend that such measures can be justified through the inhibition of rights and freedoms (Lloyd, and Sreedhar, Tuckness). More than that, Hobbes’ theory explicitly “reserves to subjects the liberty of disobeying some of their government’s commands” in protection of what he affirms to be “‘true liberties of subjects,’” meaning that despite his vocation for absolutism and secularism, he equally outlines the necessity of the rights to life, liberty, security, and property (Lloyd, and Sreedhar). Therefore, because Hobbes clearly discusses the necessity of these aforementioned rights, which require the rule of law in order to be administered with proper reciprocity and equality, Law 21 still constitutes a violation of social contract theory.
Takeaway Points: Significance of these Ideas in the Sociology and Anthropology of Today
Hobbes and Locke argue that civilized society grants liberties and freedoms to consenting contractors through the rule of law (Rachels, and Rachels 82-3). Functioning as fundamental conduits for civil order, the principles of reciprocity and equality within the rule of law guarantee mutual and uniform rights to all contract members. Though both philosophers discuss the importance of state secularism, and though Hobbes specifically argues for a more absolutist form of government, the example of the Law 21 legislation represents a blatant violation of the principles of reciprocity and equality for its limitations on the right to religious expression and freedom promised by the government through the Quebec Charter of Human Rights and Freedoms and for its denial of the equal access to those rights by those affected by the provision.
Loi noo 21. National Assembly of Quebec. M.assnat.qc.ca/en/travaux-parlementaires/projets-loi-21-42-1.html. Accessed 12 March 2020.
Lloyd, Sharon A., and Sreedhar, Susanne, “Hobbes’s Moral and Political Philosophy”, The Stanford Encyclopedia of Philosophy (Spring 2019 Edition), edited by Edward N. Zalta. Hobbes-Mora. Accessed 15 March 2020.
Lloyd, Sharon A. and Sreedhar, Susanne, “Hobbes’s Moral and Political Philosophy”, The Stanford Encyclopedia of Philosophy (Spring 2019 Edition), edited by Edward N. Zalta. Hobbes-Moral. Accessed 14 March 2020.
Rachels, James, and Stuart Rachels. ‘Chapter 6: The Social Contract Theory.” The Elements of Modern Philosophy. Course-pack: Moral Issues in Law, pp. 82-97.
Section c-12. Quebec Charter of Rights and Freedoms. http://legisquebec.gouv.qc.ca/en/pdf/cs/C-12.pdf. Accessed 12 March 2020.
Tuckness, Alex, “Locke’s Political Philosophy”, The Stanford Encyclopedia of Philosophy (Spring 2020 Edition), edited by Edward N. Zalta. Locke. Accessed 15 March 2020.
Uzgalis, William, “John Locke”, The Stanford Encyclopedia of Philosophy (Spring 2020 Edition), edited by Edward N. Zalta. Locke. Accessed 15 March 2020.