The theoretical connection between positivism and social contract theory

THIS ARTICLE WAS WRITTEN BY JENNIFER PHILIP, STUDENT OF SCHOOL OF LAW, BENNETT UNIVERSITY.

The positivist theory of law which lays the essential elements for something to be termed can be looked into in connection with the very purpose why citizens of a country agree to be governed by a set of laws.

Austin, the main proponent of imperative theory of law or positivism defined law as “any command laid down by the sovereign and is enforceable by sanction”.[1] So anything which fulfilled these conditions would fit in the meaning of law. But the reason as to why laws exist is significant while defining law.

Thomas Jefferson while drafting the declaration of Independence in 1776 said “Governments are instituted among men, deriving their just powers from the consent of the governed”[2]. This statement rightly points out what the idea behind social contract theory is all about. “Men can mutually transfer their rights by contract; contracts provide the methodology for attaining goods, for achieving power. But contracts need a regime of power to be effective. Contracts need the power of law and this law needs a fountain of power to exist”[3]. So when a contract is entered into there should be a person or body to enforce it and this role is played by the sovereign or government. Therefore the individuals agree to enter into a contract with the sovereign which will then be an absolute power which would safeguard their rights and this theory is called the social contract theory and the main proponent of this theory is Thomas Hobbes.

Positive theory has three characteristic features or elements and this reflective piece would analyse the social contract theory aspect by dealing with each of the elements separately. The first element is law is a type of command. A command can be given by a superior to an inferior only. As per the social contract theory the citizens of a country by their will agree to be governed by the set of guidelines laid down by the government. There has been no mention of the command being morally right or wrong. But Hobbes says that the continuance of any law or the power given to the superior authority depends on the success of the system and that the people do not go back to the natural state again. So any law which does not take into account morals would go wrong as per this theory but at the same time the State can decide as to the interest of the society as large.

The second element is law is laid down by sovereign. The sovereign is vested with the power which the individual members of the society have waived off by their act of entering into the social contract.  It is pertinent to note that sovereign in this sense means only the legislature as it is having the responsibility of drafting laws on a particular subject. Executives make byelaws and other procedural guidelines for enforcing or implementing these laws and judiciary decide on cases which act as precedents. So a clear demarcation cannot be made as to who is the sovereign authority. Also by analysing the definition of social contract theory which states that individuals enter into a contract with the state to govern them an impression that the government ruling or governing the citizens would be the one unanimously elected (if a democratic form of government) could be drawn. But it is the party which gets the majority seats and not a unanimous decision which brings a sovereign into power. So what about those who do not agree to be governed by the elected government, would the government perform their part of the contract? Also in democratic countries elections take place after regular intervals. In that case the question as to whether the contract has to be renewed again arises as chances as new set of leaders may be leading the government then. The social contract theory also discards any other form of government like monarchy and dictatorship from being the sovereign authority since the act of giving consent is not there.

The third and last feature is that law should be enforceable by sanction. Social Contract theory makes no mention any sanction required for the effective functioning of the society. But Hobbes mentions that the will of the sovereign has to be exhibited by publishing or writing it down. This means any command which is not written would not be a law. So where can conventions which are usually followed but not written down: for example, a person cannot contest for the post of the President of India for more than two terms. Also in dictatorship there may not be any definite set of rules written so any such law is not law as per the social contract theory.

Also if the laws made by the legislature or sovereign considered as a whole is considered to be a contract then any deviation from the terms or provisions would mean the breach of the contract. Any novation in the contract in normal parlance rescinds the contract. So the effect of amendments made in the existing laws would be actually the ending the so called contract. Another feature would be that anyone who is within the jurisdiction of a state is to abide by its laws. So in that case even a non-citizen has to be governed for the short span of time spend in the territory by the law which he has not consented to. Will there be a valid contract then between the parties – the State and the non-citizen or will his stepping into the land be considered as an implied act of consent?

So, who decides whether the laws made are in conformity with the powers conferred upon the ‘sovereign’? So unless the sovereign does not act as per the wishes of the subject and for their interest, no coercion also would work out with regard to the sovereign institution. “The fact that the positive law is directly deduced from the first assumption of his philosophy is the evidence of the supremacy of law in Hobbes’ system”[4].  Any deviation should be made punishable. At the same time morals cannot be departed from it altogether. This is because citizens would never agree to enter into an agreement with the state by conferring it with powers if at all their moral values was hurt. While making laws the moral aspect also has to be taken into account so that the rights of citizens are highlighted.

Bibliography

1. Salmond on Jurisprudence, 12^th edition
2. Jurisprudence from the Greeks to post modernism, Wayne Morrison
3. Michel Rosenfeld, Contract and Justice: The Relation between Classical Contract Law and Social Contract Theory, 70 Iowa L. Rev. 769 (1985)
4. https://www.constitution.org/us_doi.pdf
5. https://oregonstate.edu/instruct/phl201/modules/Philosophers/Hobbes/hobbes_social_contract.html
6. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3947&context=penn_law_review
7. Positive and natural law in Thomas Hobbes’s philosophy, Katarzyna Doliwa

[1] Austin’s definition of Law

[2] Jefferson Declaration,https://www.constitution.org/us_doi.pdf

[3] Wayne Morrison, Jurisprudence from the Greeks to post modernism, 57 (Routledge 2016)

[4] Positive and natural law in Thomas Hobbes’s philosophy, katarzyna doliwa