NATURAL LAW,NATURAL RIGHTS AND

SOCIAL CONTRACT THEORY

SUBMITTED TO: DR.MANORANJAN KUMAR

SUBMITTED BY: AYUSHI AMOD
SEMESTER V
ROLL NO. 1125

CHANAKYA NATIONAL LAW UNIVERSITY

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 ACKNOWLEDGEMENT

I feel highly elated to work on this dynamic topic of A Criticism of Natural Law Theory. I want
to make it clear that I am not a master in the subject, but, I have tried my level best to give a
clear picture. This project, however, does not deal with the topic exhaustively.

Not to forget the deep sense of regard and gratitude to my advisor, Sir Manoranjan Kumar who
has played the role of a protagonist, who has always given me guidance to go ahead with my
topic. I also take up this opportunity to thank my colleagues for helping me in completing this
project. I also thank Librarian CNLU, Patna, for assisting me and allowing me to use the library
of the University.

Finally I would like to thank God, the Almighty without whose blessings this project would
never have been a success.

Ayushi Amod
Semester Vth

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 RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic State Immunity. through
reports, suggestions and different writings. The aim has been to come to a conclusion very much
indigenous.

Scope and Limitations:

Though the topic Investor Education Protection Fund. is an immense project and pages can be
written over the topic but because of certain restrictions and limitations we might not have dealt
with the topic in great detail.

Sources of Data:

The following secondary sources of data have been used in the project-

1 Books

2 Internet

3 Reports

Method of Writing and Mode of Citation:

The method of writing followed in the course of this research paper is primarily analytical. The
researcher has followed Uniform method of citation throughout the course of this research paper.

Hypothesis The researcher feels that the initiative towards State immunity through State
Immunity Act 1870 has been quite successful and efficient in its operation.

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 TABLE OF CONTENTS
1. What is Natural Law Theory
2. Two Kinds of Natural Law theory
3. Classical Natural Law Theory
4. Social Contract Theory Lockes and Hobbess opinion.
5. CONCLUSION
6. BIOBLIOGRAPHY

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 INTRODUCTION

Law is, generally, a system of rules which are enforced through social institutions to govern
behavior, although the term "law" has no universally accepted definition.[3] Laws can be made by
legislatures through legislation (resulting in statutes), the executive through decrees
and regulations, or judges through binding precedents (normally in common law jurisdictions).
Private individuals can create legally binding contracts, including (in some jurisdictions)
arbitration agreements that exclude the normal court process. The formation of laws themselves
may be influenced by a constitution (written or unwritten) and the rights encoded therein. The
law shapes politics, economics, and society in various ways and serves as a mediator of relations
between people.1

WHAT IS NATURAL LAW

The term "natural law" is ambiguous. It refers to a type of moral theory, as well as to a type of
legal theory, but the core claims of the two kinds of theory are logically independent. It does not
refer to the laws of nature, the laws that science aims to describe. According to natural law moral
theory, the moral standards that govern human behavior are, in some sense, objectively derived
from the nature of human beings and the nature of the world. While being logically independent
of natural law legal theory, the two theories intersect. However, the majority of the article will
focus on natural law legal theory.

According to natural law legal theory, the authority of legal standards necessarily derives, at least
in part, from considerations having to do with the moral merit of those standards. There are a
number of different kinds of natural law legal theories, differing from each other with respect to
the role that morality plays in determining the authority of legal norms. The conceptual
jurisprudence of John Austin provides a set of necessary and sufficient conditions for the
existence of law that distinguishes law from non-law in every possible world. Classical natural
law theory such as the theory of Thomas Aquinas focuses on the overlap between natural law

1 http://en.wikipedia.org/wiki/Law

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moral and legal theories. Similarly, the neo-naturalism of John Finnis is a development of
classical natural law theory. In contrast, the procedural naturalism of Lon L. Fuller is a rejection
of the conceptual naturalist idea that there are necessary substantive moral constraints on the
content of law. Lastly, Ronald Dworkins theory is a response and critique of legal positivism.
All of these theories subscribe to one or more basic tenets of natural law legal theory and are
important to its development and influence.2

2 http://www.iep.utm.edu/natlaw/

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 TWO KINDS OF NATURAL LAW THEORY
At the outset, it is important to distinguish two kinds of theory that go by the name of natural
law. The first is a theory of morality that is roughly characterized by the following theses.

First, moral propositions have what is sometimes called objective standing in the sense
that such propositions are the bearers of objective truth-value; that is, moral propositions
can be objectively true or false. Though moral objectivism is sometimes equated with
moral realism (see, e.g., Moore 1992, 190: "the truth of any moral proposition lies in its
correspondence with a mind- and convention-independent moral reality"), the
relationship between the two theories is controversial. Geoffrey Sayre-McCord (1988),
for example, views moral objectivism as one species of moral realism, but not the only
form; on Sayre-McCord's view, moral subjectivism and moral intersubjectivism are also
forms of moral realism. Strictly speaking, then, natural law moral theory is committed
only to the objectivity of moral norms.
The second thesis constituting the core of natural law moral theory is the claim that
standards of morality are in some sense derived from, or entailed by, the nature of the
world and the nature of human beings. St. Thomas Aquinas, for example, identifies the
rational nature of human beings as that which defines moral law: "the rule and measure of
human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II,
Q.90, A.I). On this common view, since human beings are by nature rational beings, it is
morally appropriate that they should behave in a way that conforms to their rational
nature. Thus, Aquinas derives the moral law from the nature of human beings (thus,
"natural law").

But there is another kind of natural law theory having to do with the relationship of morality to
law. According to natural law theory of law, there is no clean division between the notion of law
and the notion of morality. Though there are different versions of natural law theory, all
subscribe to the thesis that there are at least some laws that depend for their "authority" not on
some pre-existing human convention, but on the logical relationship in which they stand to moral

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standards. Otherwise put, some norms are authoritative in virtue of their moral content, even
when there is no convention that makes moral merit a criterion of legal validity. The idea that the
concepts of law and morality intersect in some way is called the Overlap Thesis.

As an empirical matter, many natural law moral theorists are also natural law legal theorists, but
the two theories, strictly speaking, are logically independent. One can deny natural law theory of
law but hold a natural law theory of morality. John Austin, the most influential of the early legal
positivists, for example, denied the Overlap Thesis but held something that resembles a natural
law ethical theory.

CLASSICAL NATURAL LAW THEORY

All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some
kind of non-conventional relation between law and morality. According to this view, then, the
notion of law cannot be fully articulated without some reference to moral notions. Though the
Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be
interpreted.The strongest construction of the Overlap Thesis forms the foundation for the
classical naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1)
eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is comprised of those
laws that govern the nature of an eternal universe; as Susan Dimock (1999, 22) puts it, one can
"think of eternal law as comprising all those scientific (physical, chemical, biological,
psychological, etc.) 'laws' by which the universe is ordered." Divine law is concerned with those
standards that must be satisfied by a human being to achieve eternal salvation. One cannot
discover divine law by natural reason alone; the precepts of divine law are disclosed only
through divine revelation.

The natural law is comprised of those precepts of the eternal law that govern the behavior of
beings possessing reason and free will. The first precept of the natural law, according to Aquinas,
is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that
Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is
derived from the rational nature of human beings. Good and evil are thus both objective and
universal.

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But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that which is
promulgated by human beings) is valid only insofar as its content conforms to the content of the
natural law; as Aquinas puts the point: "[E]very human law has just so much of the nature of law
as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no
longer a law but a perversion of law" (ST I-II, Q.95, A.II). To paraphrase Augustine's famous
remark, an unjust law is really no law at all.The idea that a norm that does not conform to the
natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William
Blackstone describes the thesis, "This law of nature, being co-eval with mankind and dictated by
God himself, is of course superior in obligation to any other. It is binding over all the globe, in all
countries, and at all times: no human laws are of any validity, if contrary to this; and such of
them as are valid derive all their force, and all their authority, mediately or immediately, from
this original" (1979, 41). In this passage, Blackstone articulates the two claims that constitute the
theoretical core of conceptual naturalism: 1) there can be no legally valid standards that conflict
with the natural law; and 2) all valid laws derive what force and authority they have from the
natural law.

THE SUBSTANTIVE NEO-NATURALISM OF JOHN FINNIS

John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone.
Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed
as a conceptual account of the existence conditions for law. According to Finnis, the classical
naturalists were not concerned with giving a conceptual account of legal validity; rather they
were concerned with explaining the moral force of law: "the principles of natural law explain the
obligatory force (in the fullest sense of 'obligation') of positive laws, even when those laws
cannot be deduced from those principles" (Finnis 1980, 23-24). On Finnis's view of the Overlap
Thesis, the essential function of law is to provide a justification for state coercion (a view he
shares with Ronald Dworkin). Accordingly, an unjust law can be legally valid, but it cannot
provide an adequate justification for use of the state coercive power and is hence not obligatory
in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of
law. An unjust law, on this view, is legally binding, but is not fully law.

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Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis
distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship,
religion, and aesthetic experience. Each of these goods, according to Finnis, has intrinsic value in
the sense that it should, given human nature, be valued for its own sake and not merely for the
sake of some other good it can assist in bringing about. Moreover, each of these goods is
universal in the sense that it governs all human cultures at all times. The point of moral
principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral
principles enable us to select among competing goods and to define what a human being can
permissibly do in pursuit of a basic good.

THE PROCEDURAL NATURALISM OF LON L. FULLER

Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are
necessary substantivemoral constraints on the content of law. But Fuller, unlike Finnis, believes
that law is necessarily subject to a procedural morality. On Fuller's view, human activity is
necessarily goal-oriented or purposive in the sense that people engage in a particular activity
because it helps them to achieve some end. Insofar as human activity is essentially purposive,
according to Fuller, particular human activities can be understood only in terms that make
reference to their purposes and ends. Thus, since lawmaking is essentially purposive activity, it
can be understood only in terms that explicitly acknowledge its essential values and purposes:

The only formula that might be called a definition of law offered in these writings is by now
thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of
rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal
system as the product of a sustained purposive effort (Fuller 1964, 106).

To the extent that a definition of law can be given, then, it must include the idea that law's
essential function is to "achiev[e] [social] order through subjecting people's conduct to the
guidance of general rules by which they may themselves orient their behavior" (Fuller 1965,
657).

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 Fuller's functionalist conception of law implies that nothing can count as law unless it is capable
of performing law's essential function of guiding behavior. And to be capable of performing this
function, a system of rules must satisfy the following principles:

(P1) the rules must be expressed in general terms;

(P2) the rules must be publicly promulgated;

(P3) the rules must be prospective in effect;

(P4) the rules must be expressed in understandable terms;

(P5) the rules must be consistent with one another;

(P6) the rules must not require conduct beyond the powers of the affected parties;

(P7) the rules must not be changed so frequently that the subject cannot rely on them; and

(P8) the rules must be administered in a manner consistent with their wording.

On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can
achieve law's essential purpose of achieving social order through the use of rules that guide
behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior
because people will not be able to determine what the rules require. Accordingly, Fuller
concludes that his eight principles are "internal" to law in the sense that they are built into the
existence conditions for law.

These internal principles constitute a morality, according to Fuller, because law necessarily has
positive moral value in two respects: (1) law conduces to a state of social order and (2) does so
by respecting human autonomy because rules guide behavior. Since no system of rules can
achieve these morally valuable objectives without minimally complying with the principles of
legality, it follows, on Fuller's view, that they constitute a morality. Since these moral principles
are built into the existence conditions for law, they are internal and hence represent a conceptual

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connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller
subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist.

On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like
poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy
conflict with morality, as they do in the case of poisoning, it follows that they are distinct from
moral standards. Thus, while Hart concedes that something like Fuller's eight principles are built
into the existence conditions for law, he concludes they do not constitute a conceptual connection
between law and morality.

Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral
ideals of fairness. For example, public promulgation in understandable terms may be a necessary
condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce
rules that have not been publicly promulgated in terms reasonably calculated to give notice of
what is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive
rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its
internal standards of efficacy, but such standards are distinguishable from the principles of
legality in that they conflict with moral ideals.

Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles
of efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent
with considerable divergence from the principles of legality. Legal standards, for example, are
necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And
officials all too often fail to administer the laws in a fair and even-handed manner even in the
best of legal systems. These divergences may always be prima facie objectionable, but they are
inconsistent with a legal system only when they render a legal system incapable of performing its
essential function of guiding behavior. Insofar as these principles are built into the existence
conditions for law, it is because they operate as efficacy conditions and not because they function
as moral ideals.

RONALD DWORKIN'S "THIRD THEORY"

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Ronald Dworkin's so-called third theory of law is best understood as a response to legal
positivism, which is essentially constituted by three theoretical commitments: the Social Fact
Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it
is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the
idea here is that what ultimately explains the validity of a law is the presence of certain social
facts, especially formal promulgation by a legislature.

The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts
giving rise to legal validity are authoritative in virtue of a social convention. On this view, the
criteria that determine whether or not any given norm counts as a legal norm are binding because
of an implicit or explicit agreement among officials. Thus, for example, the U.S. Constitution is
authoritative in virtue of the conventional fact that it was formally ratified by all fifty states.The
Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis;
according to the Separability Thesis, there is no conceptual overlap between the notions of law
and morality. As Hart more narrowly construes it, the Separability Thesis is "just the simple
contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands
of morality, though in fact they have often done so" (Hart 1994, 185-186).

Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards
the authority of which cannot be explained in terms of social facts. In deciding hard cases, for
example, judges often invoke moral principles that Dworkin believes do not derive
their legal authority from the social criteria of legality contained in a rule of recognition.

In Riggs v. Palmer, for example, the court considered the question of whether a murderer could
take under the will of his victim. At the time the case was decided, neither the statutes nor the
case law governing wills expressly prohibited a murderer from taking under his victim's will.
Despite this, the court declined to award the defendant his gift under the will on the ground that
it would be wrong to allow him to profit from such a grievous wrong. On Dworkin's view, the
court decided the case by citing "the principle that no man may profit from his own wrong as a
background standard against which to read the statute of wills and in this way justified a new
interpretation of that statute" (Dworkin 1977, 29).

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On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal standards
when it considered this principle. For the Riggs judges would "rightfully" have been criticized
had they failed to consider this principle; if it were merely an extralegal standard, there would be
no rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly, Dworkin
concludes that the best explanation for the propriety of such criticism is that principles are part of
the law.

A CRITIQUE OF NATURAL LAW THEORY THE CONFLICT

BETWEEN THE THEORY AND ITS ADHERENTS

At the heart of natural law theory is the idea that everything in existence has a nature which
gives everything in existence a purpose and goal in life, and that all these natures are related such
that everything in existence is in one way or another connected to other things in existence. This
idea makes natural law theory conflict with both atheism and agnosticism. Atheism denies the
existence of a Creator for the universe. This idea conflicts with natural law theory which holds
that the Creators existence has a purpose; the purpose is considered obvioussomething that is
not under the control of the things in existence. Natural law theory, therefore, holds that life must
be aligned with this purpose rather than secondarily adjusting purpose to life. The idea of a
purpose for lifewith the attribute that purpose dominates existence rather than existence
dominating purposecannot be rationally accepted without first accepting the existence of a
Creator. Nothing else can subject existence to a pre-defined purpose. It is the case, therefore, that
he who denies God must also deny that existence has a purpose; so, he must deny natural law
theory in its entirety.

Furthermore, if relations do indeed exist between the things in existence, as natural law theory
effectively states, then all things in existence must have come into existence at the same time.
And how could all things have come to existence at the same time? For, in the case of the
relations between the things in existence, nothing could exist without the preexistence of its
survival needs in order to sustain it upon arrival. The atheist would argue that all things in
existence evolved from one original thing. This position seems to ignore, however, the

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observable fact that existence consists not only of living things but also of non-living things.
Obviously, there exist relationships between the living and the non-living, such as the
dependence on water and sunlight. Equally obvious is the fact that the non-living things in
existence cannot evolve. What the atheist must say, therefore, is that both the living and the non-
living came into existence at the exact same time with perfect relations between one another,
after which the living things evolved in perfect co-ordination between themselves without there
ever developing a conflict in the relations, and all this by sheer coincidence! This is so utterly
unimaginable that one must say he who denies God must also deny the existence of relations
between things; so, he must deny natural law theory in its entirety.

While agnosticism accepts the existence of a Creator, it refuses to research His reality deeply
who He is, why He created creation, et cetera. This position can only be justified if one assumes
that He did not intend anything with His creation and has, since creation, completely
disconnected Himself from His creation, as if He does not care about how His creation proceeds
in the existence He has given. Natural law theory stands diametrically opposed to this view, as it
claims existence has a purpose. As explained, a purpose can only be given to existence by a
Creator. The presence of a purpose for creation therefore implies that the Creator did not
disconnect from his Creation after creating, as He set for it a course. Therefore, neither the
atheist nor the agnostic can accept natural law theorywhich, by the way, proves Grotius was
wrong when he said, What we have been saying would have a degree of validity even if we
should concede that which cannot be conceded without the utmost wickedness, that there is no
God, or that the affairs of men are of no concern to him. How strange it is, therefore, that
western civilizationwhich refuses God to play an active role in determining the life of
man,today is the ideology of the atheists and the agnosticsutilizes natural law theory.

THE INTERNAL FLAWS OF NATURAL LAW THOERY

As aforementioned, at the heart of natural law theory is the idea that everything in existence has
a nature which gives everything in existence a purpose and goal in life, and all these natures
are related in one way or another, such that everything in existence is somehow connected to
other things in existence. Specifically for the human being, natural law theory adds to this the

15
idea that the human mind is able to identify the way of life that makes man live in accordance
with his nature. Essentially, it says that if man applies his mind, he will find the natural way of
life, and if he then lives his life in accordance with his nature, then he will fulfill the purpose and
goal of his life; hence, he will experience happiness in life. Also explained earlier is why this is
an implicit acknowledgement of the existence of a Creatorpurpose and relations prove his
existence obligatory.

What natural law theory is effectively saying, therefore, is that the human mind can find the
purpose given to life by the Creator of life simply by looking at the natural inclinations of
creation. Clearly, this idea assumes that satisfaction of the natural inclinations of creation is the
purpose with which the Creator created existence. What is the proof for this? In the absence of
revelation, there is none. The assumption Because man has natural inclinations, it must be his
purpose in life to satisfy these inclinations is purely speculative. It can also be imagined that
the Creator intended (some of) the natural inclinations of creation to be a test for creationthat
the Creator really wants man to abstain from (some of) what he inclines to. This in turn means
the natural law theory does not have the ability to convince the mind becausebased on these
assumptionsit lacks a rational argument. Natural law theory can only be believed, then, as one
would believe in Christianity or Judaism or Hinduism. So, the truth of the matter is, if one
accepts as fact the existence of a Creator, then one must accept as fact that only the Creator
knows with certainty what He intended with His creation. That only He knows with certainty
how He wants His creation to proceed in its life. In the absence of a revelationas in,
information flowing from the Creator to creationcreation can only speculate about all this.
Natural law theory is not internally consistent, as its conclusion (the mind can determine natural
law) is not lined with its implied assumptions (there is a Creator who cares about creation).

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 ITS NATURAL YET UNDESIRABLE CONSEQUENCES

If, for just a second, one were to ignore the fact that the human mind cannot determine the
purpose of life in the absence of revelation from the Creator, and just assume the human mind
can determine the purpose of life as the natural law theory claims, then it will be shown that the
natural law theory has very undesirable natural consequences.

The human mind is limited, namely. The human mind can only think about what has been
experienced by man, either directly or by means of reliable narration, for instance. This means
that at any moment in time other than at the end of it, the human mind will not be able to identify
the complete natural law. For, the complete natural law requires man to have experienced all that
can be experienced, and new experiences do not end until time ends. Until the end of time,
therefore, under the natural law theory, the law must follow the experiences of man. So what
natural law theory is really saying to humankind is, Get in trouble first, and then I will come to
rescue you. The guidance of natural law theory will leave man struggling with problems until
the end of time.

The minds of human beings are furthermore prone to disagreement because experiences differ
between humans, as well as their abilities to think. This means that never will there develop a
consensus about what the natural laws are. The guidance of natural law theory will, therefore,
leave man in perpetual conflict about what is correct.3

3 http://www.newcivilisation.com/home/2358/ideas-philosophy/a-critique-of-natural-
law-theory/

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Social Contract Theory
Social contract theory, nearly as old as philosophy itself, is the view that persons' moral and/or
political obligations are dependent upon a contract or agreement among them to form the society
in which they live. Socrates uses something quite like a social contract argument to explain to
Crito why he must remain in prison and accept the death penalty. However, social contract theory
is rightly associated with modern moral and political theory and is given its first full exposition
and defense by Thomas Hobbes. After Hobbes, John Locke and Jean-Jacques Rousseau are the
best known proponents of this enormously influential theory, which has been one of the most
dominant theories within moral and political theory throughout the history of the modern West.
In the twentieth century, moral and political theory regained philosophical momentum as a result
of John Rawls Kantian version of social contract theory, and was followed by new analyses of
the subject by David Gauthier and others. More recently, philosophers from different
perspectives have offered new criticisms of social contract theory. In particular, feminists and
race-conscious philosophers have argued that social contract theory is at least an incomplete
picture of our moral and political lives, and may in fact camouflage some of the ways in which
the contract is itself parasitical upon the subjugations of classes of persons.

Socrates' Argument
In the early Platonic dialogue, Crito, Socrates makes a compelling argument as to why he must
stay in prison and accept the death penalty, rather than escape and go into exile in another Greek
city. He personifies the Laws of Athens, and, speaking in their voice, explains that he has
acquired an overwhelming obligation to obey the Laws because they have made his entire way of
life, and even the fact of his very existence, possible. They made it possible for his mother and
father to marry, and therefore to have legitimate children, including himself. Having been born,
the city of Athens, through its laws, then required that his father care for and educate him.

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Socrates' life and the way in which that life has flourished in Athens are each dependent upon the
Laws. Importantly, however, this relationship between citizens and the Laws of the city are not
coerced. Citizens, once they have grown up, and have seen how the city conducts itself, can
choose whether to leave, taking their property with them, or stay. Staying implies an agreement
to abide by the Laws and accept the punishments that they mete out. And, having made an
agreement that is itself just, Socrates asserts that he must keep to this agreement that he has made
and obey the Laws, in this case, by staying and accepting the death penalty. Importantly, the
contract described by Socrates is an implicit one: it is implied by his choice to stay in Athens,
even though he is free to leave.
In Plato's most well-known dialogue, Republic, social contract theory is represented again,
although this time less favorably. In Book II, Glaucon offers a candidate for an answer to the
question "what is justice?" by representing a social contract explanation for the nature of justice.
What men would most want is to be able to commit injustices against others without the fear of
reprisal, and what they most want to avoid is being treated unjustly by others without being able
to do injustice in return. Justice then, he says, is the conventional result of the laws and
covenants that men make in order to avoid these extremes. Being unable to commit injustice with
impunity (as those who wear the ring of Gyges would), and fearing becoming victims
themselves, men decide that it is in their interests to submit themselves to the convention of
justice. Socrates rejects this view, and most of the rest of the dialogue centers on showing that
justice is worth having for its own sake, and that the just man is the happy man. So, from
Socrates point of view, justice has a value that greatly exceeds the prudential value that Glaucon
assigns to it.
These views, in the Crito and the Republic, might seem at first glance inconsistent: in the former
dialogue Socrates uses a social contract type of argument to show why it is just for him to remain
in prison, whereas in the latter he rejects social contract as the source of justice. These two views
are, however, reconcilable. From Socrates' point of view, a just man is one who will, among
other things, recognize his obligation to the state by obeying its laws. The state is the morally and
politically most fundamental entity, and as such deserves our highest allegiance and deepest
respect. Just men know this and act accordingly. Justice, however, is more than simply obeying
laws in exchange for others obeying them as well. Justice is the state of a well-regulated soul,
and so the just man will also necessarily be the happy man. So, justice is more than the simple

19
reciprocal obedience to law, as Glaucon suggests, but it does nonetheless include obedience to
the state and the laws that sustain it. So in the end, although Plato is perhaps the first philosopher
to offer a representation of the argument at the heart of social contract theory, Socrates ultimately
rejects the idea that social contract is the original source of justice.

Modern Social Contract Theory

a. Thomas Hobbes
Thomas Hobbes, 1588-1679, lived during the most crucial period of early modern England's
history: the English Civil War, waged from 1642-1648. To describe this conflict in the most
general of terms, it was a clash between the King and his supporters, the Monarchists, who
preferred the traditional authority of a monarch, and the Parliamentarians, most notably led by
Oliver Cromwell, who demanded more power for the quasi-democratic institution of Parliament.
Hobbes represents a compromise between these two factions. On the one hand he rejects the
theory of the Divine Right of Kings, which is most eloquently expressed by Robert Filmer in
his Patriarcha or the Natural Power of Kings, (although it would be left to John Locke to refute
Filmer directly). Filmers view held that a kings authority was invested in him (or, presumably,
her) by God, that such authority was absolute, and therefore that the basis of political obligation
lay in our obligation to obey God absolutely. According to this view, then, political obligation is
subsumed under religious obligation. On the other hand, Hobbes also rejects the early democratic
view, taken up by the Parliamentarians, that power ought to be shared between Parliament and
the King. In rejecting both these views, Hobbes occupies the ground of one is who both radical
and conservative. He argues, radically for his times, that political authority and obligation are
based on the individual self-interests of members of society who are understood to be equal to
one another, with no single individual invested with any essential authority to rule over the rest,
while at the same time maintaining the conservative position that the monarch, which he called
the Sovereign, must be ceded absolute authority if society is to survive.
Hobbes' political theory is best understood if taken in two parts: his theory of human
motivation, Psychological Egoism, and his theory of the social contract, founded on the
hypothetical State of Nature. Hobbes has, first and foremost, a particular theory of human nature,
which gives rise to a particular view of morality and politics, as developed in his philosophical
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masterpiece, Leviathan, published in 1651. The Scientific Revolution, with its important new
discoveries that the universe could be both described and predicted in accordance with universal
laws of nature, greatly influenced Hobbes. He sought to provide a theory of human nature that
would parallel the discoveries being made in the sciences of the inanimate universe. His
psychological theory is therefore informed by mechanism, the general view that everything in the
universe is produced by nothing other than matter in motion. According to Hobbes, this extends
to human behavior. Human macro-behavior can be aptly described as the effect of certain kinds
of micro-behavior, even though some of this latter behavior is invisible to us. So, such behaviors
as walking, talking, and the like are themselves produced by other actions inside of us. And these
other actions are themselves caused by the interaction of our bodies with other bodies, human or
otherwise, which create in us certain chains of causes and effects, and which eventually give rise
to the human behavior that we can plainly observe. We, including all of our actions and choices,
are then, according to this view, as explainable in terms of universal laws of nature as are the
motions of heavenly bodies. The gradual disintegration of memory, for example, can be
explained by inertia. As we are presented with ever more sensory information, the residue of
earlier impressions slows down' over time. From Hobbes point of view, we are essentially very
complicated organic machines, responding to the stimuli of the world mechanistically and in
accordance with universal laws of human nature.
In Hobbes' view, this mechanistic quality of human psychology implies the subjective nature of
normative claims. Love and hate, for instance, are just words we use to describe the things we
are drawn to and repelled by, respectively. So, too, the terms good and bad have no meaning
other than to describe our appetites and aversions. Moral terms do not, therefore, describe some
objective state of affairs, but are rather reflections of individual tastes and preferences.

In addition to Subjectivism, Hobbes also infers from his mechanistic theory of human nature that
humans are necessarily and exclusively self-interested. All men pursue only what they perceive
to be in their own individually considered best interests - they respond mechanistically by being
drawn to that which they desire and repelled by that to which they are averse. This is a universal
claim: it is meant to cover all human actions under all circumstances in society or out of it,
with regard to strangers and friends alike, with regard to small ends and the most generalized of
human desires, such as the desire for power and status. Everything we do is motivated solely by

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the desire to better our own situations, and satisfy as many of our own, individually considered
desires as possible. We are infinitely appetitive and only genuinely concerned with our own
selves. According to Hobbes, even the reason that adults care for small children can be
explicated in terms of the adults' own self-interest (he claims that in saving an infant by caring
for it, we become the recipient of a strong sense of obligation in one who has been helped to
survive rather than allowed to die).

In addition to being exclusively self-interested, Hobbes also argues that human beings are
reasonable. They have in them the rational capacity to pursue their desires as efficiently and
maximally as possible. Their reason does not, given the subjective nature of value, evaluate their
given ends, rather it merely acts as "Scouts, and Spies, to range abroad, and find the way to the
things Desired" (139). Rationality is purely instrumental. It can add and subtract, and compare
sums one to another, and thereby endows us with the capacity to formulate the best means to
whatever ends we might happen to have.

From these premises of human nature, Hobbes goes on to construct a provocative and
compelling argument for why we ought to be willing to submit ourselves to political authority.
He does this by imagining persons in a situation prior to the establishment of society, the State of
Nature.

According to Hobbes, the justification for political obligation is this: given that men are naturally
self-interested, yet they are rational, they will choose to submit to the authority of a Sovereign in
order to be able to live in a civil society, which is conducive to their own interests. Hobbes
argues for this by imagining men in their natural state, or in other words, the State of Nature. In
the State of Nature, which is purely hypothetical according to Hobbes, men are naturally and
exclusively self-interested, they are more or less equal to one another, (even the strongest man
can be killed in his sleep), there are limited resources, and yet there is no power able to force
men to cooperate. Given these conditions in the State of Nature, Hobbes concludes that the State
of Nature would be unbearably brutal. In the State of Nature, every person is always in fear of
losing his life to another. They have no capacity to ensure the long-term satisfaction of their
needs or desires. No long-term or complex cooperation is possible because the State of Nature
can be aptly described as a state of utter distrust. Given Hobbes' reasonable assumption that most
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people want first and foremost to avoid their own deaths, he concludes that the State of Nature is
the worst possible situation in which men can find themselves. It is the state of perpetual and
unavoidable war.

The situation is not, however, hopeless. Because men are reasonable, they can see their way out
of such a state by recognizing the laws of nature, which show them the means by which to
escape the State of Nature and create a civil society. The first and most important law of nature
commands that each man be willing to pursue peace when others are willing to do the same, all
the while retaining the right to continue to pursue war when others do not pursue peace. Being
reasonable, and recognizing the rationality of this basic precept of reason, men can be expected
to construct a Social Contract that will afford them a life other than that available to them in the
State of Nature. This contract is constituted by two distinguishable contracts. First, they must
agree to establish society by collectively and reciprocally renouncing the rights they had against
one another in the State of Nature. Second, they must imbue some one person or assembly of
persons with the authority and power to enforce the initial contract. In other words, to ensure
their escape from the State of Nature, they must both agree to live together under common laws,
and create an enforcement mechanism for the social contract and the laws that constitute it. Since
the sovereign is invested with the authority and power to mete out punishments for breaches of
the contract which are worse than not being able to act as one pleases, men have good, albeit
self-interested, reason to adjust themselves to the artifice of morality in general, and justice in
particular. Society becomes possible because, whereas in the State of Nature there was no power
able to "overawe them all", now there is an artificially and conventionally superior and more
powerful person who can force men to cooperate. While living under the authority of a
Sovereign can be harsh (Hobbes argues that because men's passions can be expected to
overwhelm their reason, the Sovereign must have absolute authority in order for the contract to
be successful) it is at least better than living in the State of Nature. And, no matter how much we
may object to how poorly a Sovereign manages the affairs of the state and regulates our own
lives, we are never justified in resisting his power because it is the only thing which stands
between us and what we most want to avoid, the State of Nature.
According to this argument, morality, politics, society, and everything that comes along with it,
all of which Hobbes calls commodious living' are purely conventional. Prior to the

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establishment of the basic social contract, according to which men agree to live together and the
contract to embody a Sovereign with absolute authority, nothing is immoral or unjust - anything
goes. After these contracts are established, however, then society becomes possible, and people
can be expected to keep their promises, cooperate with one another, and so on. The Social
Contract is the most fundamental source of all that is good and that which we depend upon to
live well. Our choice is either to abide by the terms of the contract, or return to the State of
Nature, which Hobbes argues no reasonable person could possibly prefer.

Given his rather severe view of human nature, Hobbes nonetheless manages to create an
argument that makes civil society, along with all its advantages, possible. Within the context of
the political events of his England, he also managed to argue for a continuation of the traditional
form of authority that his society had long since enjoyed, while nonetheless placing it on what he
saw as a far more acceptable foundation.

b. John Locke
For Hobbes, the necessity of an absolute authority, in the form of a Sovereign, followed from the
utter brutality of the State of Nature. The State of Nature was completely intolerable, and so
rational men would be willing to submit themselves even to absolute authority in order to escape
it. For John Locke, 1632-1704, the State of Nature is a very different type of place, and so his
argument concerning the social contract and the nature of men's relationship to authority are
consequently quite different. While Locke uses Hobbes methodological device of the State of
Nature, as do virtually all social contract theorists, he uses it to a quite different end. Lockes
arguments for the social contract, and for the right of citizens to revolt against their king were
enormously influential on the democratic revolutions that followed, especially on Thomas
Jefferson, and the founders of the United States.
Locke's most important and influential political writings are contained in his Two Treatises on
Government. The first treatise is concerned almost exclusively with refuting the argument of
Robert Filmers Patriarcha, that political authority was derived from religious authority, also
known by the description of the Divine Right of Kings, which was a very dominant theory in
seventeenth-century England. The second treatise contains Lockes own constructive view of the

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aims and justification for civil government, and is titled "An Essay Concerning the True Original
Extent and End of Civil Government".
According to Locke, the State of Nature, the natural condition of mankind, is a state of perfect
and complete liberty to conduct one's life as one best sees fit, free from the interference of others.
This does not mean, however, that it is a state of license: one is not free to do anything at all one
pleases, or even anything that one judges to be in ones interest. The State of Nature, although a
state wherein there is no civil authority or government to punish people for transgressions against
laws, is not a state without morality. The State of Nature is pre-political, but it is not pre-moral.
Persons are assumed to be equal to one another in such a state, and therefore equally capable of
discovering and being bound by the Law of Nature. The Law of Nature, which is on Lockes
view the basis of all morality, and given to us by God, commands that we not harm others with
regards to their "life, health, liberty, or possessions" (par. 6). Because we all belong equally to
God, and because we cannot take away that which is rightfully His, we are prohibited from
harming one another. So, the State of Nature is a state of liberty where persons are free to pursue
their own interests and plans, free from interference, and, because of the Law of Nature and the
restrictions that it imposes upon persons, it is relatively peaceful.

The State of Nature therefore, is not the same as the state of war, as it is according to Hobbes. It
can, however devolve into a state of war, in particular, a state of war over property disputes.
Whereas the State of Nature is the state of liberty where persons recognize the Law of Nature
and therefore do not harm one another, the state of war begins between two or more men once
one man declares war on another, by stealing from him, or by trying to make him his slave. Since
in the State of Nature there is no civil power to whom men can appeal, and since the Law of
Nature allows them to defend their own lives, they may then kill those who would bring force
against them. Since the State of Nature lacks civil authority, once war begins it is likely to
continue. And this is one of the strongest reasons that men have to abandon the State of Nature
by contracting together to form civil government.

Property plays an essential role in Locke's argument for civil government and the contract that
establishes it. According to Locke, private property is created when a person mixes his labor with
the raw materials of nature. So, for example, when one tills a piece of land in nature, and makes

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it into a piece of farmland, which produces food, then one has a claim to own that piece of land
and the food produced upon it. (This led Locke to conclude that America didnt really belong to
the natives who lived there, because they were, on his view, failing to utilize the basic material of
nature. In other words, they didnt farm it, so they had no legitimate claim to it, and others could
therefore justifiably appropriate it.) Given the implications of the Law of Nature, there are limits
as to how much property one can own: one is not allowed to take more from nature than one can
use, thereby leaving others without enough for themselves. Because nature is given to all of
mankind by God for its common subsistence, one cannot take more than his own fair share.
Property is the linchpin of Lockes argument for the social contract and civil government because
it is the protection of their property, including their property in their own bodies, that men seek
when they decide to abandon the State of Nature.

According to Locke, the State of Nature is not a condition of individuals, as it is for Hobbes.
Rather, it is populated by mothers and fathers with their children, or families - what he calls
"conjugal society" (par. 78). These societies are based on the voluntary agreements to care for
children together, and they are moral but not political. Political society comes into being when
individual men, representing their families, come together in the State of Nature and agree to
each give up the executive power to punish those who transgress the Law of Nature, and hand
over that power to the public power of a government. Having done this, they then become
subject to the will of the majority. In other words, by making a compact to leave the State of
Nature and form society, they make one body politic under one government (par. 97) and
submit themselves to the will of that body. One joins such a body, either from its beginnings, or
after it has already been established by others, only by explicit consent. Having created a
political society and government through their consent, men then gain three things which they
lacked in the State of Nature: laws, judges to adjudicate laws, and the executive power necessary
to enforce these laws. Each man therefore gives over the power to protect himself and punish
transgressors of the Law of Nature to the government that he has created through the compact.

Given that the end of "men's uniting into common-wealths"( par. 124) is the preservation of their
wealth, and preserving their lives, liberty, and well-being in general, Locke can easily imagine
the conditions under which the compact with government is destroyed, and men are justified in

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resisting the authority of a civil government, such as a King. When the executive power of a
government devolves into tyranny, such as by dissolving the legislature and therefore denying
the people the ability to make laws for their own preservation, then the resulting tyrant puts
himself into a State of Nature, and specifically into a state of war with the people, and they then
have the same right to self-defense as they had before making a compact to establish society in
the first place. In other words, the justification of the authority of the executive component of
government is the protection of the peoples property and well-being, so when such protection is
no longer present, or when the king becomes a tyrant and acts against the interests of the people,
they have a right, if not an outright obligation, to resist his authority. The social compact can be
dissolved and the process to create political society begun anew.

Because Locke did not envision the State of Nature as grimly as did Hobbes, he can imagine
conditions under which one would be better off rejecting a particular civil government and
returning to the State of Nature, with the aim of constructing a better civil government in its
place. It is therefore both the view of human nature, and the nature of morality itself, which
account for the differences between Hobbes' and Lockes views of the social contract.

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 CONCLUSION
Also to say that human laws which conflict with the Divine law are not binding, that is to say, are
not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most
opposed to the will of God, have been and are continually enforced as laws by judicial tribunals.
Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the
penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the
sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall
not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the
inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have
impugned the validity (Austin 1995, 158).

Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is
always possible for a court to enforce a law against a person that does not satisfy Austin's own
theory of legal validity.

Another frequently expressed worry is that conceptual naturalism undermines the possibility of
moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for
legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the
legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey
Murphy (1990, 18) put the point:

The important things [conceptual naturalism] supposedly allows us to do (e.g., morally evaluate
the law and determine our moral obligations with respect to the law) are actually rendered more

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difficult by its collapse of the distinction between morality and law. If we really want to think
about the law from the moral point of view, it may obscure the task if we see law and morality as
essentially linked in some way. Moral criticism and reform of law may be aided by an initial
moral skepticism about the law.

There are a couple of problems with this line of objection. First, conceptual naturalism does not
foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can
plausibly be claimed that the content of a norm being enforced by society as law does not
conform to the natural law, this is a legitimate ground of moral criticism: given that the norm
being enforced by law is unjust, it follows, according to conceptual naturalism, that it is not
legally valid. Thus, the state commits wrong by enforcing that norm against private citizens.

Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law
by pointing to its practical implications a strategy that seems to commit a category mistake.
Conceptual jurisprudence assumes the existence of a core of social practices (constituting law)
that requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is
to articulate the concept of law in a way that accounts for these pre-existing social practices. A
conceptual theory of law can legitimately be criticized for its failure to adequately account for
the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative
quality or its practical implications.

A more interesting line of argument has recently been taken up by Brian Bix (1996). Following
John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual
naturalists, arguing instead that the claim that an unjust law is not a law should not be taken
literally:

A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust
laws are not laws "in the fullest sense." As we might say of some professional, who had the
necessary degrees and credentials, but seemed nonetheless to lack the necessary ability or
judgment: "she's no lawyer" or "he's no doctor." This only indicates that we do not think that the
title in this case carries with it all the implications it usually does. Similarly, to say that an unjust

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law is "not really law" may only be to point out that it does not carry the same moral force or
offer the same reasons for action as laws consistent with "higher law" (Bix 1996, 226).

Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo- naturalism
of John Finnis discussed below in Section III. Nevertheless, while a plausible case can be made
in favor of Bix's view, the long history of construing Aquinas and Blackstone as conceptual
naturalists, along with its pedagogical value in developing other theories of law, ensures that this
practice is likely, for better or worse, to continue indefinitely.

Founded in our nature and revealed to us by our reason, the moral law is known to us in the
measure that reason rings a knowledge of it home to our understanding. The question arises:
How far can man be ignorant of the natural law, which, as St. Paul says, is written in
the human heart (Romans 2:14). The general teaching of theologians is that the supreme and
primary principles are necessarily known to everyone having the actual use of reason. These
principles are really reducible to the primary principle which is expressed by St. Thomas in
the form: "Do good and avoid evil". Wherever we find man we find him with a moral code,
which is founded on the first principle that good is to be done and evil avoided. When we pass
from the universal to more particular conclusions, the case is different. Some follow immediately
from the primary, and are so self-evident that they are reached without any complex course of
reasoning. Such are, for example: "Do not commit adultery"; "Honour your parents".
No person whose reason and moral nature is ever so little developed can remain in ignorance of
such precepts except through his own fault. Another class of conclusions comprises those which
are reached only by a more or less complex course of reasoning. These may remain unknown to,
or be misinterpreted even by persons whose intellectual development is considerable. To reach
these more remote precepts, many facts and minor conclusions must be correctly appreciated,
and, in estimating their value, a person may easily err, and consequently, without moral fault,
come to a false conclusion.

A few theologians of the seventeenth and eighteenth centuries, following some older ones,
maintained that there cannot exist in anyone practical ignorance of the natural law. This opinion

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however has no weight .Theoretically speaking, man is capable of acquiring a full knowledge of
the moral law, which is, as we have seen, nothing but the dictates of reason properly
exercised. Actually, taking into consideration the power of passion, prejudice, and other
influences which cloud the understanding or pervert the will, one can safely say that man,
unaided by supernatural revelation, would not acquire a full and correct knowledge of the
contents of the natural law . In proof we need but recall that the noblest ethical teaching
of pagans, such as the systems of Plato, Aristotle, and the Stoics, was disfigured by
its approbation of shockingly immoral actions and practices.

As the fundamental and all-embracing obligation imposed upon man by the Creator, the natural
law is the one to which all his other obligations are attached. The duties imposed on us in
the supernatural law come home to us, because thenatural law and its exponent, conscience, tell
us that, if God has vouchsafed to us a supernatural revelation with a series of precepts, we are
bound to accept and obey it. The natural law is the foundation of all human law inasmuch as it
ordains that man shall live in society, and society for its constitution requires the existence of an
authority, which shall possess the moral power necessary to control the members and direct them
to the common good. Human laws are valid and equitable only in so far as they correspond with,
and enforce or supplement the natural law; they are null and void when they conflict with it.

Logically, chronologically, and ontologically antecedent to all human society for which it
provides the indispensable basis, the natural or moral law is neitheras Hobbes, in anticipation
of the modern positivistic school, taughta product of social agreement or convention, nor a
mere congeries of the actions, customs, and ways of man, as claimed by the ethicists who,
refusing to acknowledge the First Cause as a Personality with whom one entertains
personal relations, deprive the law of its obligatory basis. It is a true law, for through it the
Divine Mind imposes on the subject minds of His rational creatures their obligations and
prescribes their duties.4

4 http://www.newadvent.org/cathen/09076a.htm

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 BIBLIOGRAPHY
o http://www.newadvent.org/cathen/09076a.htm
o http://www.iep.utm.edu/natlaw

o http://www.newcivilisation.com/home/2358/ideas-philosophy/a-critique-of-
natural-law-theory/
o http://en.wikipedia.org/wiki/Law

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