John Locke’s Social Contract Theory and the Constitution

of India: Convergence and Divergence

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. Socratesuses something quite like a Social Contract
argument to explain to Critowhy 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.

So, basically, it was Hobbes, Locke, Rousseau and Kant who expounded the Social
Contract Theory. According to this theory, the origin of the state is due to general
agreement freely entered into by equal and independent individuals living in a state of
nature to form themselves in to a community and obey a government established by them
for the protection of their natural rights. According to this theory, the state is a result of
an agreement between the people to unite together at the first instance, and then an
agreement between the people and the ruler by which the authority and power was given
to the ruler.

Social Contract Theory expresses two fundamental ideas to which the human mind
always clings the value of liberty; the idea that “will” and not “force” is the basis of
government; and the value of justice or the idea that “right” and not “might” is the basis
of all political society and of every system of political order.

The theory seeks to explain the formation of societies and governments. Despite the great
variations on some points, the Social Contract Theory mainly focuses on the voluntary
consent that people give to the formation of the government.

Austin had criticized the theory of Social Contract on the ground that this theory cannot
stand the test of scrutiny for there is hardly any historical evidence available showing that
any political organization had been established in this manner. Sir Henry Maine also does
not believe in the theory of the Social Contract. He says that in the primitive society there
was hardly any value of promise. Moreover, in primitive society, he believes, the unit of
society was not the individual but the family.

Although the antecedents of Social Contract Theory are found in antiquity, in Greek and
Stoic philosophy and Roman and Canon Law, as well as in the Biblical idea of the
covenant, the heyday of the Social Contract was the mid-17th to early 19th centuries,
when it emerged as the leading doctrine of political legitimacy. The starting point for
most Social Contract theories is a heuristic examination of the human condition absent
from any political order that Thomas Hobbes termed the "state of nature". In this
condition, individuals' actions are bound only by their personal power and conscience.
From this shared starting point, Social Contract theorists seek to demonstrate, in different
ways, why a rational individual would voluntarily consent to give up his or her natural
freedom to obtain the benefits of political order.

Hugo Grotius (1625), Thomas Hobbes (1651), Samuel Pufendorf (1673), John Locke
(1689), Jean-Jacques Rousseau (1762), and Immanuel Kant (1797) are among the most
prominent of 17th- and 18th-century theorists of Social Contract and natural rights. Each
solved the problem of political authority in a different way. Grotius posited that
individual human beings had natural rights; Hobbes asserted that humans consent to
abdicate their rights in favor of the absolute authority of government (whether monarchial
or parliamentary); Pufendorf disputed Hobbes's equation of a state of nature with war.

However, it was the idea of natural rights that played an important role in the legal and
political philosophy of Locke. He, in fact, made life, liberty, and property, his three
cardinal rights, which greatly dominated and influenced the Declaration of American
Independence in 1776. Locke’s view was that the state was designed to guarantee and
protect natural rights of the individuals. His ‘inalienable’ rights of the individual came to
be embodied in many Constitutions and were guaranteed to the individual.

John Locke’s Social Contract Theory

John Locke (29 August 1632 – 28 October 1704), was an English philosopher and
physician regarded as one of the most influential of Enlightenment thinkers and known as
the "Father of Classical Liberalism". Considered one of the first of the British empiricists,
following the tradition of Francis Bacon, he is equally important to Social Contract
Theory. He developed his Social Contract Theory in his famous book “Two Treatises on
Civil Government (1690)”. His work greatly affected the development of epistemology
and political philosophy. His writings influenced Voltaire and Rousseau, many Scottish
Enlightenment thinkers, as well as the American revolutionaries. His contributions to
classical republicanism and liberal theory are reflected in the United States Declaration of
Independence.

The new political theories which emerged as a result of renaissance, favored absolute
sovereignty of the State- undermining the importance of the individual. Therefore, in
order to support the rights of the individual against the absolute power of the sovereign, a
new interpretation of the natural law and Social Contract theories became more or less
necessary. John Locke had witnessed the Glorious Revolution of 1688 and the wave of
individualism in England which greatly influenced the political and legal theories in
Britain at that time. He therefore, came out with a new interpretation of the Social
Contract rejecting Hobbes’ earlier concept of state of nature.

State of Nature
Locke stated that the life in the state of nature was not as miserable and brutish as
depicted by Hobbes, instead it was reasonably good and enjoyable. Unlike Thomas
Hobbes, Locke believed that human nature is characterized by reason and tolerance. Like
Hobbes, Locke believed that human nature allowed men to be selfish. In a natural state
all people were equal and independent, and everyone had a natural right to defend his
“Life, health, Liberty, or Possessions". According to him, the state of nature was a golden
age except that the property was insecure. 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 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 didn’t 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 didn’t 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
Locke’s 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.

Social Contract
It was for the purpose of protection of property that man entered into the ‘Social
Contract’. By property was meant life, liberty and estate. Locke says “every man has a
property in his own person”. Property was insecure because (i) there was no established
law, nor (ii) an impartial judge, and (iii) the natural power to execute natural law was not
always commensurate with the claim. To remedy this flaw man entered into the Social
Contract by which he yields to the sovereign, not all his rights, but only the power to
preserve order and enforce the law of nature. People made two contracts, namely social
and political contracts. The Social Contract was made between the people themselves.
They surrendered only some of their rights- the right of interpreting and enforcing the law
of nature. It was only a limited surrender and not a complete surrender of their rights.
Moreover, they surrendered their rights to the community as a whole and not to any
particular individual. Thus, they established a civil society. The second contract, called
the governmental contract was made between the people and the rule. It was made to
enforce the first contract. By this the government came into existence. The state of nature
was put to an end by means of these two contracts.

Government as a Trust
Thus, the individual retained the natural rights to life, liberty and estate, for they were the
natural and inalienable rights of man. The purpose of government and law is to uphold
and protect the natural rights. So long as the government fulfils their purpose, the laws
given by it are valid and binding but when it ceases to do that, its law have no validity
and the people have a right to revolt against the government and overthrow it. The state
of nature which precedes the Social Contract, was not one of anarchy, as Hobbes had
imagined, but was ‘a state of liberty, not of license’. Locke advocated a state for the
general good of the people; the subject conditionally surrenders his liberty to the
sovereign.

It may be stated that Locke’s idea of Social Contract was founded on new secular
approach to natural law whereby the power of the government was conceded on trust by
the people to the rulers and any infringement of the conduct by the rulers was treated as a
breach of the people’s fundamental natural rights which justified revolt against the
government. Locke pleaded for a constitutionally limited government. The nineteenth
century doctrine of laissez faire was the result of individual’s freedom in matters relating
to economic activities which found support in Locke’s theory. Unlike Hobbes who
supported State authority, Locke pleaded for the individual liberty.

John Locke argued that sovereignty resided in the people for whom governments were
trustees and that such government could be legitimately overthrown if they failed to
discharge their functions to the people. He attempted to erect effective safeguards against
violations of natural law by the government. Locke said that the sovereign did not take all
rights; the principal rights remained with the people. Locke’s Social Contract was
devoted to sovereignty and law. Sovereignty derived from the people’s will. This will
remained with the people. He argued that sovereignty did not reside in the state but with
the people, and that the state was supreme, but only if it was bound by civil and natural
law.

Locke believed in the governed as the basis of sovereignty and the state as the guarantor
of individuals’ liberty. To Locke, under Social Contract power was surrendered not to the
sovereign but to the community. He said there and there only was a political society
where everyone in the society had quitted his natural power, resigned it up into the hands
of the community. John Locke used the phrase “there and there only” to emphasize the
importance of the WILL of the people in forming a political society. Thus, every member
of the community surrendered his natural power with free will explicitly or implicitly and
resigned it into the hands of the community in exchange for the discharge of functions to
the people, hence a political society becomes with power to preserve property and punish
offences. However, the power cannot be more than that the people had in a state of nature
before they entered into a society and gave it to the community for nobody can give more
than what he has. The term community as is used by John Locke above signifies the
government of the people by the people for the people, thus community rights should
prevail over individual rights and the rights are surrendered into community because the
sovereign is the people and only comes from the people. Thus, hands of the community
mean the governor who is governing by the WILL of the people.

Separation of Powers
Locke, thus championed a constitutionally limited sovereign and framed the doctrine of
separation of powers. The legislative power creates the rules to give effect to and protect
the inalienable rights. There is the executive power by which the law is enforced; and
there is the federative power which concerns the making of war and peace and controls
the external relations of the state. Locke says that it is desirable to confer legislative and
executive powers in different organs because there is the danger of entrusting the law
makers with the power to carry out the laws which they themselves make. He did not
advocate separation between the executive and federative power, since both are
dependent on force.

A Comparative Analysis of John Locke’s Social Contract Theory and the Constitution of
India.
John Locke’s Social Contract Theory is very much reflected in the Constitution of India.
According to Locke’s theory, man in the ‘State of Nature’ felt the need to protect their
property and for the purpose of protection of their property, men entered into the “Social
Contract”. Under the contract, people came together and made two agreements, namely,
Pactum Unionis and Pactum Subjectionis. Through the Pactum Unionis, the people
formed an association in order to move themselves from the state of nature into civil
society thereby making an attempt to sought protection of their lives and property. As a
result of it, a society was formed where people undertook to respect each other and live in
peace and harmony. The Pactum Unionis was made between the people themselves
wherein they surrendered their rights to the community as a whole and not to any
particular individual thereby creating a political society and government through their
consent. Through the Pactum Subjectionis the people united together and pledged to obey
an authority and surrendered part of their freedom and rights to the authority. The
authority, on the other hand guaranteed to everyone protection of life, property and to a
certain extent liberty. The Pactum Subjectionis was made between the people and the
rule. Thus, through the second agreement the people empowered the authority to enforce
the initial agreement i.e., the Pactum Unionis.

The Preamble to the Constitution of India begins with the phrase “WE, THE PEOPLE
OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN…”. This
shows the people of India coming together to form a sovereign authority i.e., the
Sovereign of India. This can aptly be related to the Pactum Unionis as described in
Locke’s theory. The Preamble ends with “… DO HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION.” This reflects the attempt made by the
people of India to unite together and pledge to obey an authority i.e., the Constitution of
India thereby forming the Government of India. Thus, the people of India enter into a
contract to ensure the certainty and security to their lives, liberties and properties.

According to Locke, under the Social Contract the people did not surrender all their
rights to the sovereign authority i.e., the Government, but they surrendered only the right
to preserve/maintain order and enforce the law of nature. The individual retained with
them the other rights i.e., right to life, liberty and estate because these rights were
considered natural and inalienable rights of men. Thus, we see that Locke advocates a
limited surrendering of rights by the people.

The Constitution of India contains a long list of Fundamental Rights (Articles 14 to 35) in
Part III. These rights are regarded as fundamental because they are most essential for the
attainment of full intellectual, moral and spiritual status of the individual. Under Article
21 the Constitution of India ensures to every citizen the protection of life and personal
liberty. It is supplemented by Articles 20 and 22 which provides the necessary safeguards
to prevent against unjust and illegal conviction and detention of a person. In the historical
decision of Maneka Gandhi v. Union of India, Bhagwati J., observed, “ the Fundamental
Rights represent the basic values cherished by the people of the country (India) since the
vedic times and they are calculated to protect the dignity of the individual and create
conditions in which every human being can develop his personality to the fullest extent.
They weave a ‘pattern of guarantee’ on the basic structure of human rights, and impose
negative obligations on the state not to encroach on individual liberty in its various
dimensions”. Thus, we see that the state is limited in its power to encroach upon the
Fundamental Rights and liberties as guaranteed under the Constitution of India. This is
reflected under Article 359 of the Constitution of India which states that in case of
National Emergency proclaimed by the President of India under Article 352 and 358, the
fundamental rights under Article 19 will automatically be suspended. However, Articles
20 and 21 cannot be suspended even during emergencies thereby restricting the sovereign
authority to curtail the Right to Life which is a natural right.

Prior to the 44th Amendment to the Constitution of India the Right to Property was a
fundamental right under Article 19 (1) (f). However, with the 44th Amendment, the Right
to Property was removed from Part III and inserted in Article 300A. This was done in
order to ensure an economic welfare pattern. However, in case the statutory authority
deprives an individual from his personal property for the sake of public interest, there has
to be a fair compensation made to that individual for his loss of property thereby
withholding Locke’s view of ‘fair compensation’.

However, if people are given complete and absolute liberty without any social control,
the result would be ruin. Liberty has to be limited. For liberty of one must not offend
liberty of others. In A.K. Gopalan v. State of Madras, Patanjali Shastri J., observed, “man
as a rational being desires to do many things, but in a civil society his desires have to be
controlled, regulated and reconciled with the exercise of similar desire by other
individuals.” Thus, the fundamental rights guaranteed under Article 19(1) (a), 19(1) (b),
19 (1) (c), 19 (1) (d), 19 (1) (e) are restricted by the Article 19 (2), 19 (3), 19 (4), 19 (5)
and 19 (6). Also Article 21, though cannot be suspended but nonetheless, it can be limited
according to the procedure established by law. However, such restrictions should be just
and reasonable. In Maneka Gandhi v. Union of India, it was held that the order
withholding the reasons for impounding the passport was not only in breach of statutory
provisions (Passport Act) but also in violation of the rule of natural justice. The principle
of reasonableness, which is an essential element of equality or non-arbitrariness, pervades
Article 14. This ensures that the procedure depriving a person of his ‘life or personal
liberty’ must be just, fair and reasonable. It must satisfy the requirement of natural justice
which is an essential component of fair procedure under Article 21.

The phrase ‘reasonable restrictions’ in Article 19(6) means that the restrictions imposed
on a person in the enjoyment of his rights should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public. The word ‘reasonable’
implies intelligent care and deliberation which reason dictates.

In Locke's Letter Concerning Toleration, he develops several lines of arguments that are
intended to establish the proper spheres for religion and politics. His central claims are
that government should not use force to try to bring people to the true religion and that
religious societies are voluntary organizations that have no right to use coercive power
over their own members or those outside their group, thereby barring governments from
using force to encourage people to adopt religious beliefs. This, is also reflected in the
Constitution of India wherein under Articles 25 and 26 it guarantees religious freedom to
every citizen. However, such freedom is not absolute and can be obstructed on the ground
of public health and morality and to uphold the secular character of the Constitution of
India.

Moreover, Locke claims that legitimate government is based on the idea of separation of
powers. First and foremost of these is the legislative power. Locke describes the
legislative power as supreme (Two Treatises) in having ultimate authority over “how the
force for the commonwealth shall be employed”. The legislature is still bound by the law
of nature and much of what it does is to set down laws that further the goals of natural
law and specify appropriate punishments for them. The executive power is then charged
with enforcing the law as it is applied in specific cases. Interestingly, Locke’s third power
is called the “federative power” and it consists of the right to act internationally according
to the law of nature. Since countries are still in the state of nature with respect to each
other, they must follow the dictates of natural law and can punish one another for
violations of that law in order to protect the rights of their citizens. This, therefore,
contains the power of war and peace, leagues and alliances, and all the transactions with
all persons and communities without the commonwealth.

The Indian Constitution also embodies Locke’s theory of separation of powers to some
extent, the only difference being that instead of the ‘federative power’ as propounded by
Locke in his theory of separation of power, the Constitution of India has adopted the
‘judicial power’ as the third branch of the Government. Under Article 50 of the
Constitution of India the judicial power is separated from the executive power in order to
endure the independence of the judiciary. The legislative power is established under the
Articles 245, 246, 248, 249, 250, 252, 253 and 368 r/w the Seventh Schedule of the
Indian Constitution.

Conclusion
Parliamentary democracy existing in the modern day India today is mainly influenced by
John Locke’s idealism. His ideas gave theoretical form to the reaction against absolutism
and the preparation of parliamentary democracy.

Moreover, John Locke’s doctrines of liberty and equality have exercised a strong
influence upon Fundamental Rights as guaranteed under the Constitution of India.
Liberty and equality of an individual are highly respected and thus protected by the
government and sovereignty resides in the people as per John Locke’s ideas.

Political power derived from Social Contract entails such power coming from the people
and not from above, whether from divine law or the grace of God. Thus, Social Contract
Theory of John Locke is a forerunner of democratic theory i.e. the government of the
people, by the people and for the people. Thus, the modern democratic government as we
see in India, i.e., adhering to free and fair election principles have their basis in social
contract theory.

It can thus be said that Social Contract Theory is exercised in India through the elections
of some people to form the government. The major problem facing our country is non
adherence by the governments to the Social Contract principles as propounded by John
Locke. The said principles require the government and the people to exist under Pactum
Unionis and Pactum Subjectionis with due respect and adherence to the duties and rights
arising there from. In every political community of people there is a Constitution and the
Constitution is supposed to reflect the WILL of the people. And since the Constitution of
India reflects the WILL of the people, it then enjoins every person to abide the provisions
of this Constitution, that is, to live according to their agreed procedures and respect the
community. The jurisprudence behind Social Contract Theory is to promote peace and
harmony as that it is the bed rock of democratic societies such as India.