Before we consider the main defects and weaknesses of the contract theory, we must as Prof. Gilchrist says, keep in mind its two chief aspects; as a theory of the historical origin of the State, and as a theory of political obligation. Although the historical explanation of this theory is quite false, yet much can be said in favour of its second aspect. We shall first point out its fallacies, and then its value.
Its fallacies and defects
It is unhistorical:
One of the main defects of the social contract theory is that it is historically false. It claims to be a historical explanation of the origin of the State, but it has no foundation in history. In the whole range of human history we do not find men living in a State of nature without social relationships, nor do we find any evidence of a social contract which created the society and the State. In short, there is no historical evidence of a social contract in human past It is historically impossible to believe that men living in the State of nature, and knowing nothing about political institutions and organisations, should suddenly and deliberately agree to set up a State. What history teaches us is that “the State is a growth and not a manufacture.”
It is sociologically unscientific:
The sociological explanation of this theory is also unscientific and false. It asserts that men lived an isolated and independent life in the State of nature, and that they voluntarily contracted to establish the society and State, in. which also the individual remained as a free and independent unit. But social history has clearly demonstrated that in primitive society the family or tribe was the social unit and not the individual. He had no rights and no freedom.
His position in the society was determined by his birth. His birth was his social status. It is only centuries after, i.e., in modem society, that the individual has become the social unit and enjoys freedom and rights granted by the State. While history shows that the evolution of society and civilisation has been from status to contract, from birth position to free choice, the Contract Theory reverses this historical process by asserting that it was from contract to status. “The individual”, writes Sir Henry Maine “has been steadily substituted for the family as the unit of which civil laws take account… The movement has been from one of status to one of contract”
The transition is impossible:
The basic assumption of the contract theory is wrong. A sudden transition from a lawless and, as Hobbes says, even non-moral and warlike condition of the State of nature cannot change into the law-abiding and peaceful community in the State is not possible. Such a sudden change in habits, character and conduct of the people is impossible in human life and society. It requires a long period of training, education, social control and development to bring about this transition. The psychological basis of the contract theory is also unsound.
The social contract theory is full of several logical fallacies. Firstly, it presupposes equality among men in the State of nature. This assumption is not correct. Inequality is quite natural and not equality. Secondly, it presumes that men possessed natural rights and freedom in the natural State. But rights and liberty cannot exist in the State of nature. Liberty implies rights and rights imply duties and assume common consciousness of social ends and purposes.
Yet the very definition of the State of nature denotes that there were no common consciousness of social ends and purposes. Men lived separately and independently of each other and had no common life at all. Natural right was not a right—a claim recognised by others for common good-but natural force. Man’s freedom was limited by his own power, which was unequal. He had, therefore, no liberty and no rights in the State of nature. They exist only in civil society or State, where there is common social consciousness and a common authority to defend rights and enforce duties. Lastly, the whole concept of the State of nature and of the law of nature is wrong.
It is based on the belief that the State is an artificial or mechanical invention of man, while the pre-political condition of man, viz; the State of nature, was his natural condition. Similarly, the law of nature is said to be in the very nature of man, while the law of the State is man-made. But this distinction between the original State of nature and its natural law, on the one side, and the Sate and law, on the other, is illogical and unsound.
The State is as natural to human life as any other primitive condition, and its laws rise from the very nature of man. Far from being artificial, the State and society are the very expressions of human nature, because, as Aristotle long ago said, “Man is by nature an animal. Man is a part of nature; and every human law and institution is based on human needs, instincts and desires which arise from the very nature of his body and mind. Hence the basic defect of the contract theory is that it gives an artificial and mechanical explanation of the origin of the State and society. The State is a natural growth and not an artificial device.
It is self-contradictory:
The contract theory is based on self-contradictory reasoning. It declares that men in the State of nature came together to enter into a social contract and establish the State. But this fact of coming together shows that they had common consciousness before they met each other, and that the “State” had already arisen among them before they entered into a contract. Moreover, the contract itself implies that there must be a common authority to enforce it.
It means, therefore, that the origin of the State does not lie in the contract but in the common will of the men of the natural State to enter into a contract Furthermore, the contract is a legal term; it presupposes a system of laws to enforce it. But the advocates of the social contract declare that there were no laws before the contract In short, the theory is self- contradictory and illogical, because the original contractors must have already known common authority, a body of laws and common political consciousness before they assembled to enter into a contract But if they were so advanced in social and political life, they did not require any contract whatsoever to establish the society and State, which were, indeed, already there.
It contradicts the true basis of the State:
The contract theory asserts that the relationship between the individual and the State is voluntary. But the State is a compulsory association. It is not like a commercial partnership between some persons for private interests and purposes. It is a permanent union for common ends and for unlimited purposes. Every man is bom in the State; the State is a part of him and he is a part of the State.
Edmund Burke, in criticising the social contract theory, writes that the State ’’ought not be considered as nothing better than a partnership agreement in a trade of pepper or coffee, calico or tobacco, or some other such low concern, to be taken up for a little temporary interest and to be dissolved by the fancy of the parties. It is to be looked on with reverence. It is a partnership in all science, a partnership in all a partnership in every virtue and in all perfection. As the end of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living but also between those who are dead and those who are to be born.”
It is dangerous:
The theory of social contract is dangerous to the safety and security of the State. It proclaims that the State is an artifice of man’s own making and therefore can be taken down to pieces and reconstituted as he likes. So it is a plaything in the hands of revolutionaries to make or unmake it as they like. Such were, indeed, the teachings of Rousseau which led to the excesses of the revolutionaries of France in 1789 and after.
To reduce the power and functions of the State and government and to declare them as mere handiwork of men is to make them a matter of their caprice and whims. Its logical result would be the subversion of all authority which may lead to the dissolution of the State.