The concept of the social contract comes from Socrates, as described by Plato in Crito. “Then the laws will say: ‘Consider, Socrates, if we are speaking truly that in your present attempt you are going to do us an injury. For, having brought you into the world, and nurtured and educated you, and given you and every other citizen a share in every good which we had to give, we further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him. None of us laws will forbid him or interfere with him. Anyone who does not like us and the city, and who wants to emigrate to a colony or to any other city, may go where he likes, retaining his property. But he who has experience of the manner in which we order justice and administer the state, and still remains, has entered into an implied contract that he will do as we commend him. And he who disobeys us is, as we maintain, thrice wrong; first, because in disobeying us he is disobeying his parents; secondly, because we are the authors of his education; thirdly, because he has made an agreement with us that he will duly obey our commands; and he neither obeys them nor convinces us that our commands are unjust; and we do not rudely impose them, but give him the alternative of obeying or convincing us;—that is what we offer, and he does neither (Philosophy, 2011).”
According to social contract theory (SCT), morality consists in the set of rules governing behavior that rational people would accept, on condition that others accept them as well (Kary, 2000). There are several implications of SCT. These implications are things that are necessary for the survival of any society (Kary, 2000). 1. Protection of life and property. This will create the need for a police force. So as to insure that murders, assault, theft and vandalism crimes are not committed. 2. Rules that would be needed to secure the benefits of social living. This is creating consequences for the breaking of contracts (e.g. promises) and a general requirement of truth-telling. 3. Protection of society against outside threats.
This implication creates the need for an army. 4. Other important stuff – these are things that are arguably, should be a part of the social contract (i.e. it would be in everyone’s interest to have them include (Kary, 2000). The caveat to that is, a society might be able to survive (if not thrive) without them. The author will discuss the different theories but more specifically John Locke’s social contract theory and how it relates to the criminal justice system and security agents.
Four Main Social Contract Theories
There are four critical social contract theories that the author will discuss, compare and contrast. They are: consent of the governed, natural law and constitutionalism, tacit consent and voluntarism.
Consent of the Governed
“Consent of the governed” is a phrase from the United States Declaration of Independence. It is synonymous with a political theory wherein a government’s legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which the political power is exercised (Bookman, 1984). This theory of “consent” is historically contrasted to the divine right of kings and has often been invoked against the legitimacy of colonialism (Bookman, 1984).
There are several types of consent: unanimous consent, hypothetical consent and overt versus tacit consent (Bookman, 1984). The details of each type of consent are not discussed in this project, but are mentioned so that the reader is aware that they exist.
Natural law and Constitutionalism
Natural law is a law or body of laws that derives from nature and is believed to be binding upon human actions apart from or in conjunction with laws established by human authority. Constitutionalism in its simplest form is “a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law.
The (law) tacit is passive approval of someone’s wrongdoing. Also it is also described as secret approval or connivance. Another way of saying this is when one does not actually state their agreement, but does not raise any objection (in voice or in writing) to a certain course of action (i.e.; by standing mute).
Voluntarism. Voluntarism is use of or reliance on voluntary action to maintain an institution, carry out a policy, or achieve an end. It is also a theory or doctrine that regards the will as the fundamental principle of the individual or the universe rather than the intellect as the fundamental agency or principle in human activities and experience.
John Locke’s Social Contract Theory
Social Contract Theory. Social contract is the convention between men that aims to discard the state of nature. Under state of nature people live without government or written laws. People live under principles of justice that all normal people can see through reason, they include right to life, liberty and estates. Most people seek to follow these principles but the problem is lack of explicit written laws that leads to uncertainty and difficulty to resolve disputes (Nyamaka, 2011). Nyamaka (2011) discusses the solution to the problems under state of nature becomes a social contract where people agree to obey the state, let the state make and enforce laws and people pay the state for its services.
The state sets up legislatures, impartial judges and enforcers. Within this agreement the government’s duty is to protect everyone’s rights and if the government violates the social contract, people may overthrow it (Nyamaka, 2011). There are two fundamental ideas that are expressed in the social contract in 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 every system of political order.
Now in looking at social contract theory through the reasoning eyes of John Locke’s we find that he 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 (Nyamaka, 2011). Locke worked to erect effective safeguards against violations of natural law by the government. He consistently voiced the idea that sovereign did not take all rights; the principle rights remained with the people. Locke also argued that sovereignty did not reside in the state (government) but with the people, and that the state was supreme, but only if it was bound by civil and natural law (Kary, 2000). It is to be noted that Locke believed in the governed as the basis of sovereignty and the state of the guarantor of individuals’ liberty. It needs to be understood that 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” (Nyamaka, 2011). In using the “there and there only”, Locke was emphasizing the importance of the WILL of the people in forming a political society (Nyamaka, 2011). In this society/community every member surrendered his/her natural power with free will explicitly or implicitly and resigned it in the hands of the community in exchange for the discharge of functions to the people, therefore a political society becomes with power to preserve property and punish offences (Kary, 2000). Moving through this process the author will now look at how John Locke’s theory relates to the Bill of Rights.
The U.S. Bill of Rights.
In looking at John Locke’s social contract theory, one sees in this process that the power cannot be more than that of the people or more than the power 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/she has. In looking at John Locke’s explanation of the term community signifies the government of the people by the people for the people, understanding this means that community rights will/should prevail over individual rights and the rights are surrendered in to community because the sovereign is the people and only comes for the people. Hence, hands of the community mean the governor who is governing by the WILL of the people (Nyamaka, 2011).
Criminal Justice System and Security Settings
The social contract theory established the written law of the people, constituting the fundamental goods and evils according to agreed morals. Though Locke’s ideals of liberty were primitive in the seventeenth century, creating a contract to govern due process was the foundation for the government statues. Locke’s influence for a fair and consistent government is present with the Constitution of the law. The greater good of the community was intended with the written set of rules to govern society’s checks and balance of power by political absolutism. Some would or may say that Locke’s theory was flawed in the seventeenth century; it enlightened the idea of a legislative body for the people and introducing the importance of a written rule of law to create a contract for society to maintain an ordered and structured means of living.
Personal Rights and Ethical Standards and Obligation
Personal rights are the rights that a person has over their own body. Among personal rights are associated rights to protect and safeguard the body, most obviously protected by the torts of assault and battery. Ethical standards are a type of moral philosophy. They are simply defined as principles that promote values such as good behavior, fairness, kindness and trust. Obligation is the act of binding oneself by a social, legal, or moral tie (Jackson, 2002). When it comes to social contract theory one will in some way give up some of their rights and lower their ethical standards so as to feel some level of safety within the community that they live (Jackson, 2002).
In conclusion, it is important to recognize that although individuals have a right of self-defense in the of nature, when they enter into society under the social contract, the pooling of that right transforms it into a duty to defend the community, and therefore to risk or sacrifice one’s life, liberty, or property if such defense should require it (Shankman, 2004).
Internet Encyclopedia of Philosophy. (2004, October 15). Retrieved 08 09, 2013, from lep.utm.edu: http://www.iep.utm.edu/soc-cont/#SH3b. Bookman, J. T. (1984). Locke’s Contract: Would people consent to it”. American Journal of Economics and Sociology, 357-68. Cook, V. (2000, August 26). Epicurus.
Retrieved 08 09, 2013, from www.epicurus.net: http://www.epicurus.net/en/principal.html. Jackson, A. (2002). Science of Ethics. Retrieved from Arthur M. Jackson: http://www.arthurmjackson.com/Mentor.html. Kary, J. (2000). Contract Law and the Social Contract: What Legal History Can Teach Us About the Political Theory Hobbes and Locke. 31 Ottawa Law Review 73. Nyamaka, D. M. (2011). Social Contract Theory of John Locke (1632-1740) In the Contemporary World. Selected Works, 1-15. Philosophy, S. E. (2011, January 20). Standford Enclyclopedia of Philosopy. Retrieved from Standford.Edu: http://plato.stanford.edu/entries/contractarianism/#3. Shankman, K. (2004). Natural Law Constitutionlism and the Culture of Death. Catholic Social Science Review, 61-79. Skinner, Q. (1978). The Foundations of Modern Political Thought: Volume 2: The Age of the Reformation (Vol. 2). Cambridge: Cambridge University.