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1. Theory of the Social Contract.—2. Application made of the Theory by Hobbes, Locke, and Rousseau.—3. Criticism of the Theory.—4. The Theory of Divine Origin.—5. The Theory of Force.

1. Theory of the Social Contract. After a preliminary investigation of the proper province of political science, the topic which of necessity takes the first place in our inquiry is that of the origin of the state. How has it come about that men are everywhere found living under some form of authoritative control? What is the origin of government and law? Speculation as to the beginnings of government is not merely a matter of historical curiosity, for it is intimately associated with the more important question of the justification of government,—the right of the state to be. The present subject thus brings before us both a historical and an ethical enquiry,—the investigation of the facts as to the actual beginnings of political forms and the discussion of the bearing of these facts on the question of the rightfulness or wrongness of the existence of government.

To examine and reject a fallacious hypothesis is often a means of arriving at the truth. In the present instance a presentation of some of the mistaken theories proposed as to the origin of the state may aid us in moving towards a correct one. The different opinions which we shall briefly review have had such great influence in the formation of existing political institutions that a proper understanding of them is necessary in order to appreciate the forces operative in the growth and structure of modern governments. The purpose of the ensuing discussion is not, therefore, the merely sophistical task of demolishing hypotheses of straw. The rejection of what is false in the speculative theories of the past will aid in establishing more valid conclusions on the residual basis of what is true.

Foremost in historical importance of all the different views concerning the origin of the state, is the theory of the social contract. As old as political speculation itself, and prëeminent in its influence, it stands written large upon the history of human thought. Postponing for the moment the treatment of the beginnings and growth of the theory, let us first examine in broad outline the general content of the doctrine of the social contract. It professes to offer an explanation of the origin and justification of government. To do this it starts from the fundamental assumption that the past history of mankind may be divided into two periods, the first of which is antecedent to the institution of government, the latter subsequent to it. During the first of these periods, man is found in the "state of nature," uncontrolled by any laws of human imposition, and subject only to such regulations as are supposed to be prescribed to him by nature itself. This code of regulations, or rather, since it is nowhere written down, the spirit by which such a code might be presumed to be inspired, is spoken of as the law of nature, or natural law. This primitive stage of natural society man is presently compelled to desert. Whether it be that this state is too idyllic to last, or whether it becomes in the course of time and by reason of mutual rapacity too inconvenient to be tolerated, is a point of dispute among the exponents of the theory themselves. In either case man is led to substitute for it a union with his fellowmen in which, abandoning the isolation of the "natural" individual, all are joined into one civil society or body politic. Each now stands in a vastly different relation to his fellow-men. Submitting himself to the joint control of all, he receives in return the benefit of the joint interest of all in his protection. To safeguard the security of all members of the body politic (or state), a code of law is enforced by all against the possible rapacity of each. Thus while each loses the "natural liberty" that he enjoyed in the antecedent state of nature, he gains in return the security to which he is naturally entitled, and which is now guaranteed to him by the covenant of all his fellows. Human law is substituted for a natural law, and the individual in submitting to social duties finds himself clothed with social rights. The process, or at any rate the result of it, has very much the appearance of a contract or bargain dictated by the individual's own interest, an exchange of obligations in return for privileges. Whether the bargain is to be looked upon as one that actually happened at a given time and place for each politically constituted society, or whether it merely expresses the result or outcome of a more gradual social process, is a matter that has been persistently left in a half-light. We cannot therefore make any general statement as to whether those who have defended the idea of the social contract have viewed it as a historical fact, or only as an interpretation of the nature of the social bond.

Such is in general the doctrine of the social contract. A glance at the growth and history of the doctrine itself may serve to bring out more saliently the nature of the argument involved. The origin of the theory is to be found in the philosophy of the Greeks. It is associated more particularly with the speculative thought of the period during which the Greek city state—the organized form under which Athens and Sparta reached their greatest development—was falling into decadence. In the writings of Plato and Aristotle we find but scant sanction for it. The political thought of both of them was inspired by the ideal of the city state, whose importance was to them greater than, and antecedent to, that of the individual citizen. The latter, indeed, only existed in and through the state. The social bond with his fellows was an essential part of man's nature. "Man," runs the well-known Aristotelian dogma, "is a political animal." Society, therefore, being the primary consideration, and the individual existence being possible only by means of it, the conception of an individual dealing in obligations and privileges, as a subject of contract with society at large, was altogether foreign to the Platonic and Aristotelian system.

With the Greeks of the fourth and succeeding centuries, however, the political environment had altogether changed. The subversion of the city state by the Macedonian and Roman conquests led the Greek philosophers to turn aside from political speculation, and to look upon the political aspect of the individual as merely one of the accidents of his being. In the writings of the Epicurean school we find the idea that laws and duties imposed on the individual by any government, whether foreign or autonomous, are things which he accepts for his own well-being, entering thus into a kind of compact or understanding with the powers that be. On this foundation grew up the theory of the social contract. The system of the Roman law, one of whose greatest contributions to institutional development has been to bring into a clear light the conception of obligation by contract, supplied a further material with which to construct the completed theory.[18] Christianity, indeed, inculcating in its early teachings the doctrine that all civil society had been the outcome of human sin, and that it was the duty of the Christian to submit to the rule of temporal powers as a part of his abnegation of self, seemed at first to run counter to the supposedly equitable bargain of a social contract. Nevertheless in the polemics of the middle ages, during which the rival claims of the empire and the papacy supplied the basis of political controversy, a sort of meeting-point appears between the doctrine of a social contract and the early Christian conception of the nature of civil society. The advocates of the papal claim held that kings and princes in general, and hence the emperor among them, held their offices (under God's sanction) by reason of a covenant with the people, even as the elders of Israel covenanted with King David.[19] This view, connected presently with the earlier Greek philosophy, gave rise to a special form of contract theory in the idea of a compact made by all the people with one person, a contract between a king and his subjects. To this special form of the general doctrine the name of governmental compact[20] has often been given.

2. Application made of the Theory by Hobbes, Locke, and Rousseau. It was in the seventeenth and eighteenth centuries, in consequence of the religious and civil upheavals by which the political institutions of Europe were moulded anew, that the theory of contract obtained its greatest prominence. Hobbes and Locke in England and Jean Jacques Rousseau in France became its chief exponents. A review of the contract theory as laid down by each will serve to show it in its completed form. Thomas Hobbes, sometime tutor to Charles II, and prominent among the writers of the seventeenth century for his works on moral and political philosophy, offers in his "Leviathan" (1651) a striking exposition of the contract theory. The foundation of his theory lies in his estimate of man's essential nature. Man, according to Hobbes, is an altogether selfish and self-seeking animal. The sole motive for his actions proves on analysis to be the wish to satisfy his own appetites and desires; even such a quality as benevolence is seen on examination to result from man's "love of power and delight in the exercise of it." Compassion is only "grief at the calamities of others from the imagination that the like calamity may befall ourselves." Man is therefore by nature anything but a social animal; indeed he finds "nothing but grief in the company of his fellows," all being equally rapacious and self-seeking. The state of nature is consequently a state of war, the war of each against all; it is a state of "continual fear and danger of violent death; and the life of man solitary, poor, nasty, brutish, and short." From this condition man is driven by evident necessity to join himself with his fellows under some common authority, universal submission to any form of control, however despotic, being preferable to the mutual warfare of the state of nature. In the contract which men thus make among themselves all agree to submit to a single authority, which Hobbes interprets to be that of a king or absolute sovereign. But the latter, from the nature of the case, though benefited by the contract, is not a party to it. Such a contract thus differs from the governmental compact referred to above in that the king, being no party to it, cannot break it. It becomes irrevocably binding on all the community as a perpetual social bond. In this way the theory is used by Hobbes as a defense of absolute monarchy, the philosopher appearing as the theoretical apologist of the Stuart despotism.

Very different is the presentation of the contract by Hobbes's illustrious contemporary John Locke. With the latter the state of nature is not one of universal war; it is, however, inconvenient and unsatisfactory. There is in the first place the standing "want of an established, settled, known law, the 'law of nature' being obscured since men are biased by their interest as well as ignorant for want of study of it." Nor is there "a known and indifferent judge," nor, finally, an active power to punish those who contravene the law of nature. For these reasons, men are led to abandon the "freedom" of the state of nature, and submit to the restraint of civil society. In the contract which they make, however, the monarch to whom they agree to submit, is himself a party. The contract as presented by Locke does not precisely correspond to the governmental compact, since it not only establishes the authority of the monarch, but also joins the members of the community by mutual covenant into a body politic.[21] It differs on the other hand from the contract of Hobbes in that the monarch is a party to it, and holds his office only by virtue of his compliance with the terms of the contract. Should the king break these, the contract is dissolved. In this form the theory is made the basis of a system of limited monarchy, and Locke stands as the apologist of the English revolution of 1688. The charge of having endeavored to "subvert the original contract between king and people," which was the indictment of the Convention Parliament against King James II, shows the basis of Locke's later defense of the revolution which was embodied in his "Treatises on Government" (1690).

Strongly contrasted with each of these is the standpoint of the great French writer of the eighteenth century, Jean Jacques Rousseau. Rousseau's book, the "Contrat Social" (1762), may be taken as the exposition of the theory dominant in the eighteenth century. With Rousseau the state of nature appears as an era of almost idyllic felicity.[22] The simple savage endowed with a health and vigor as yet unimpaired by the enervating influences of civilization suffices easily for his own restricted felicity. To this hypothetical state of nature Rousseau appeals for the solution of the problems of civilized life in regard to education, morals, etc. As the numbers of the race increase, this primitive condition becomes no longer advantageous. The obstacles which injure man's preservation in the state of nature grow more powerful than the forces which each individual can employ to maintain himself in this condition. Man is thus driven to relinquish his "natural liberty," that rather illusory "unlimited right to everything he is able to obtain," and by a union with his fellows to substitute civil for natural liberty. To do this he is driven to find a "form of association which may defend and protect with all the force of the community the person and property of each associate and by which each, being united to all, yet only obeys himself and remains as free as before." This is the social contract, a covenant of each with all. The king or monarch (or governing body of any kind) is not a party to the bargain, nor is the tenure of office of the ruler or rulers one of the terms of the contract. The king is merely a commissioned officer who holds his position at the dictates of that general will (volonté générale) which emerges as the sovereign power in consequence of the contract. Any king is of course deposable if the general will demands it. With Rousseau the doctrine of the social contract, which in the hands of Hobbes was made a weapon of defense for absolutism, and with Locke a shield for constitutional limited monarchy, becomes the basis of popular sovereignty.

3. Criticism of the Theory. From the exposition of the theory, let us turn to the question of its criticism. Attacked even in the eighteenth century by David Hume,[23] it has undergone a series of assaults at the hands of the publicists of the nineteenth century, as the result of which it may be now looked upon as exploded. Jeremy Bentham says of it, "I bid adieu to the original contract and I left it to those to amuse themselves with this rattle who could think they needed it." J. K. Bluntschli, one of the most distinguished German writers on political science in the nineteenth century, pronounces the theory not only unhistorical and illogical, but even "in the highest degree dangerous, since it makes the State and its institutions the product of individual caprice."[24]

Of the arguments directed against the social contract, the most evident and the most unanswerable is that the theory has no foundation in history. There is no recorded instance of a group of savages, previously without any political organization or political ideas, deliberately meeting together to supply the defect. Nor is it rational to suppose that any such deliberate first creation of the state could have happened; for this presupposes in the minds of its founders the conception of social organization before any such phenomenon had existed. They must have known what a government was before they could make one. As against this it is urged that history does furnish us instances of what may be termed the formation of a social contract, not indeed among men hitherto ignorant of government, but among groups of people separated from the state under which they had lived, and desirous of forming a new organization by deliberate action. Most famous of these instances is the case of the Puritan emigrants of the Mayflower. The familiar document drawn up and signed by them while still on board ship runs, "We . . . do, by these presents, solemnly and mutually in the presence of God and one another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation." "When Carlyle objects," says Professor Ritchie, "that Jean Jacques could not fix the date of the social contract, it would at least be a plausible retort to say that the date was the 11th of November, 1620."[25] Further examples are found during the same era of American history in the Providence agreement (1636) and the plantation covenant of New Haven (1638). It has even been urged that the written constitutions of the United States and its component commonwealths are historical instances of social contracts. But in all of these cases we have at best not the institution of a state among a people hitherto devoid of political organization, but the establishment of a particular government by persons already accustomed to the rights and duties of civil society. If the social-contract theory merely meant that in some cases particular governments are established by joint and general action, it would be hard to contradict it.

It is, however, possible to abandon the doctrine of the social contract as representing a historical occurrence, and yet to adhere to it as expressing the proper interpretation of the relations between the individual and the state. Viewed in this light it is no longer a historical but an analytical conception. It proposes as the justification of the state a voluntary exchange of services between the individual and the political community. The individual renders obedience and receives protection. It is in this form that we find the contract doctrine maintained by many political philosophers of the early nineteenth century. Such for instance is the standpoint of Kant.[26] The contract, he says, is "not to be assumed as a historical fact, for as such it is not possible, but it is a rational idea which has its practical reality in that the legislator may so order his laws as if they were the outcome of a social contract. The latter becomes in consequence 'the criterion of the equity of every public law.'"[27] Yet even as an ideal of social relations, the contract doctrine has been assailed, one may say almost overwhelmed, with hostile criticism. The individual, it is argued, is joined to the state not by a voluntary conjunction but by an indissolvable bond. The relation is a compulsory one. Each of us is born into the state; we are part of the state and the state is part of us. The state is not a mutual assurance society, membership in which is a matter that the citizen may accept or reject. Nor is the true measure of our social duties to be found in the extent of benefit that we receive from society. Our common experience of the nature of the state indicates much that conflicts with the narrow view suggested by the quid pro quo of a contract relation. Patriotism—the sacrifice of the individual's interests to the claims of the community—we account one of the highest of virtues. We look to the state as the especial guardian of the poor and the helpless. We call upon it to act not for the present generation alone, but for the welfare of those which are to come. The state, in fine, stands in its ideal aspect for the collective moral effort of the whole community. The line of thought here suggested finds its extreme expression in what is called the "organic theory of the state," a doctrine that will be examined in a later chapter.

4. The Theory of Divine Origin. The importance of the social-contract theory has entitled it to a somewhat elaborate discussion. Of the other fallacious doctrines in question, the two principal ones, the theory of the divine origin of the state and the theory of force, may be more briefly mentioned. The theory of the divine origin, known in familiar form as "the divine right of kings," may now be regarded as entirely extinct in political theory. It belongs especially to the period of the sixteenth and seventeenth centuries. Originating after the great mediæval controversy of the Papacy and Empire had subsided, it represents the resistance offered by the constituted monarchical governments to the growing ideas of popular sovereignty. Its essential meaning is that each and every existing state represents an institution of deliberate divine creation. Under this theory the government, or one may say the monarch, since the doctrine was directed towards the defense of the monarchical system, represents a direct divine agency against whom no supposed principle of individual rights can be valid. In a certain sense it is of course very generally held that all human institutions represent the controlling power of the Deity. But the theory of divine right goes much farther than this. It assumes the Deity to have vested political power in a special way, and by special intervention, and to have seen fit to deny political supremacy to the mass of the community. Such works as the "Patriarca" of Sir Robert Filmer, a parasitic apologist of the later Stuarts, reflect the theory in its extreme form, the paternal power vested at the creation in Adam being here supposed to pass by descent to the kings and princes of Europe. The theory as such needs no longer a serious refutation. It has, however, been pointed out by several critics of this doctrine that it has left deep traces in the underlying political thought of European nations. The idea of kingship as having a peculiar divine sanction—the "divinity that doth hedge a king"—is by no means an extinct element in the thought of many people both in Great Britain and continental Europe.[28]

5. The Theory of Force. Finally, we may mention among the erroneous doctrines in explanation of the origin and meaning of the state the theory of force. Here, again, the same theory appears both as a historical interpretation of the rise of the state and as a rational justification of its being. Historically it means that government is the outcome of human aggression, that the beginnings of the state are to be sought in the capture and enslavement of man by man, in the conquest and subjugation of the feebler tribes, and, generally speaking, in the self-seeking domination acquired by superior physical force. The progressive growth from tribe to kingdom, and from kingdom to empire, is but a continuation of the same process. Such a point of view is frequent with the fathers of the church and the theologians of the middle ages, by whom the origins of earthly sovereignty are decried in order that its subordination to the supremacy of the spiritual power may be the more evident. Gregory VII wrote (A. D. 1080), "Which of us is ignorant that kings and lords have had their origin in those who, ignorant of God, by arrogance, rapine, perfidy, slaughter, by every crime with the devil agitating as the prince of the world, have contrived to rule over their fellow men with blind cupidity and intolerable presumption."[29]

In modern times we see much the same view advanced for a very different purpose in the earlier political writings of Herbert Spencer.[30] "Government," he says, "is the offspring of evil, bearing about it the marks of its parentage." With the churchmen the temporal power was defamed for the benefit of the spiritual authorities; with Spencer and the still more extreme writers of the "anarchistic" school, the maintenance of the rights of the individual man is the object pursued. We find the theory of force elaborated in detail by Marx, Engels, and the writers of the German socialistic group. Here the doctrine assumes a slightly different form. The growth of the state is to be attributed to the process of aggressive exploitation, by means of which a part of the community has succeeded in defrauding their fellows of the just reward of their labor. Existing governments represent merely the coercive organization which serves to hold the workers in bondage.[31] The socialist writers have no fault to find with the abstract existence of a state or coercive authority. Their objection is directed against the particular form of the present state, which they ascribe to its iniquitous historical origin. As against the theory of force in general it can with propriety be advanced that it errs in magnifying what has been only one factor in the evolution of society, into the sole controlling force. That government has in part been founded on aggression no one will readily deny. But as we shall presently see, its institution has owed much to forces of an entirely different character. Even a "population of devils," Kant has said, "would find it to their advantage to establish a coercive state by general consent."

The force theory has also played some part in political thought, not as a historical account of the rise of the state, but as a means of its justification. Stated in its crudest form, such a doctrine is equivalent to the proposition that might is right. "The individual," writes Jellinek, in elucidation of this point of view, "must submit himself to it since he perceives it to be an unavoidable force (Naturgewalt)." Bluntschli even maintains that the doctrine has "a residuum of truth, since it makes prominent one element which is indispensable to the state, namely force, and has a certain justification as against the opposed theory (that of contract) which bases the state upon the arbitrary will of individuals, and leads logically to political impotence."[32] But in plain matter of fact, and apart from the refinements of abstraction, the proposition seems hopelessly illogical. As was long ago pointed out by Rousseau, the right that is conferred by might can reasonably be said to last only as long as the might which confers it. Submission to the state would therefore only be warranted as long as one was unable to do anything else than submit. The amount of justification involved in this is less than nothing.

The theory of force, as a defense of the governmental authority, assumes quite a different aspect at the hands of Ludwig von Haller. Writing at a time when the great wars of the Revolutionary and Napoleonic era had overwhelmed the sanguine outlook of the eighteenth century enlightenment in the disillusion of a devastated continent, he represents a natural revulsion from the deification of popular sovereignty towards the principles of monarchical authority. With Haller government is based upon "the natural law that the stronger rules." But the principle involved is one of benevolence, not of repression. The fundamental bond of human relationship and social cohesion is the dependence of the weak upon the strong. Obedience is given on the one hand, protection on the other. We see this in the relation of parent and child, husband and wife, master and servant. This is the true relation of the prince and the subject. The position is not one created by a voluntary act; it is not a contract; it is a part of the fundamental order of the universe. "We might as well say," Haller contends, "that there is a contract between a man and the sun, that he will allow himself to be warmed by it." This universal law of the submission of the weak to the strong is thus made the basis of a theory of absolute monarchy and unlimited submission. Though clothed in a benevolent form it amounts to the assertion that sovereign power is the disposable property of the prince. As such it needs no refutation.[33]