2.9 Social Contract Theory

Social contract theory is another descriptive theory about society and the relationship between rules and laws, and why society needs them. Thomas Hobbes (1588-1689) proposed that a society without rules and laws to govern our actions would be a dreadful place to live. Hobbes described a society without rules as living in a “state of nature.” In such a state, people would act on their own accord, without any responsibility to their community. Life in a state of nature would be Darwinian, where the strongest survive and the weak perish. A society, in Hobbes’ state of nature, would be without the comforts and necessities that we take for granted in modern western society. The society would have:

• No place for commerce
• Little or no culture
• No knowledge
• No leisure
• No security and continual fear
• No arts
• Little language

Social contract theory is a cynical, but possibly realistic, view of humanity without rules and people to enforce the rules. An example of a society in a state of nature can at times be observed when a society is plunged into chaos due a catastrophic event. This may occur in because of a war, such as happened in Rwanda, or by cause of a natural disaster, such as what happened in New Orleans in the aftermath of Hurricane Katrina. In both of these examples a segment of society devolved from a country in which the rule of law was practised to a community in a state of nature. Rules and laws were forgotten and brute force dictated who would survive. Unfortunately, without laws and rules, and people to enforce those laws and rules, society devolves into a state of nature.

In general, even without the calamities of natural disasters and war, Hobbes assumed people would strive for more wealth and power in what could be described as a “dog eat dog” society, where, he believed, people will do whatever is required to survive in a state of nature, where rules and laws are non-existent. This would mean that people will act in “wicked” ways to survive, including attacking others before they are attacked themselves. With rules in place, people feel protected against attack.

In a state-of-nature society, the strongest would control others that are weak. Society would have no rules or laws forbidding or discouraging unethical or immoral behaviour. People would be forced to be solely self-interested in order to survive and prone to fight over possession of scarce goods (scarce because of the lack of commerce).

For Hobbes, the solution is a social contract in which society comes to a collective understanding — a social contract — that it is in everyone’s interest to enforce rules that ensure safety and security for everyone, even the weakest. Thus, the social contract can deliver society from a state of nature to a flourishing society in which even the weak can survive. The degree to which society protects the weak may vari; however, in our society, we agree to the contract and need the contract to ensure security for all.

The social contract is unwritten, and is inherited at birth. It dictates that we will not break laws or certain moral codes and, in exchange, we reap the benefits of our society, namely security, survival, education and other necessities needed to live.

According to Pollock (2007), there are five main reasons that laws are required in society:

1. The harm principle: to prevent the serious physical assault against others that would be victimized.
2. The offence principle: to prevent behaviour that would offend those who might otherwise be victimized.
3. Legal paternalism: to prevent harm against everyone in general with regulations.
4. Legal moralism: to preventing immoral activities such as prostitution and gambling.
5. Benefit to others: to prevent actions that are detrimental to a segment of the population.

Problems with the social contract theory include the following:

• It gives government too much power to make laws under the guise of protecting the public. Specifically, governments may use the cloak of the social contract to invoke the fear of a state of nature to warrant laws that are intrusive.
• From the time that we are born, we do not knowingly agree to a contract and therefore do not consent to the contract. An outflow of this thought is a movement entitled the “Sovereign Citizens” or “Freemen of the Land.” The FBI identifies these movements as individual citizens who reject government control and “the government operates outside of its jurisdiction. Because of this belief, they do not recognize federal, state, or local laws, policies, or regulations.” (US Department of Justice, 2010). The FBI considers these movements as domestic terrorist threats (FBI, 2011).
• If we do accept the contract and wish to abide by it, we may not fully understand what our part of the contract is or ought to be.
• Contracts can be unfair for some. For example, the poor do not get the same benefits of the contract.

Q. How can social contract theory assist law enforcement in moral dilemmas?

While social contract theory does not tell people how they ought to behave, it does provide a basis to understand why society has implemented rules, regulations, and laws. If not for the social contract theory, our understanding of the need for these rules would be limited.

Specifically for law enforcement, social contract theory is important to justify the power that law enforcement can exert over the population as a whole (Evans and MacMillan, 2014). The power imbalance, held by law enforcement, is part of the contract that society has agreed upon in exchange for security. Where the contract can be problematic is when the power used by law enforcement exceeds what is expected by society under the contract.