The Social Contract: A Basic Contradiction in Western Liberal Democracy

Posted: 19 Sep 2008

Date Written: September, 15 2008


Abstract: The social contract and state of nature are accepted legitimating myths in the liberal democracies, yet do not correspond to reality. In contrast, a theory of natural law (lex naturalis, the law of the jungle) combined with ius naturalis (natural justice - right reason in accord with the law of nature) is internally consistent and externally verifiable and thus an adequate description of reality - natural law is a consistent and complete system with more than purely formal value. Yet, natural law theories were rejected by late modernity in favour of pure positivism and voluntarism - with disastrous consequences. Natural law arguments are the basis of the individual rights underlying the social contract model of liberal democracy and so the rejection of natural law should entail the rejection of social contract theory. Contemporary theorists such as Dworkin, Rawls and Nozick struggle to this very day with the concept of the social contract and state of nature without however consciously developing or deploying any theory of natural law and are thus doomed to irrelevance and failure because both the social contract and the state of nature are ahistorical myths. A reconceptualisation of the foundations of the state requires recognition of the validity of natural law and the rectitude of the Aristotelian view that the state is inevitable and a natural phenomena. The social contract is no answer to the problems of state formation or legitimation. Liberal democracies would more consistently and coherently legitimate themselves by reference to laws founded not on a mythical social contract but which reflect the facts of human nature.

The Social Contract: A Basic Contradiction in Western Liberal Democracy 1 I. Natural Rights 5 A. Foundation of natural law in intellectual realism 5 B. Human rights 11 1. The central function of human rights is political legitimation 12 2. The idea of human rights is necessarily ambiguous 12 a. Universal terminology is a source of ambiguity in human rights 12 b. The multiplicity of theoretical sources of law is the source of the ambiguity inherent in human rights 13 c. The multiplicity of legal sources also at the root of the ambiguity of human rights 13 d. The quest for political legitimacy based on human rights as unworkable because of the ambiguity inherent in the idea of human rights. 13 II. Social Contract Theory 14 A. The State of nature 15 B. The Social Contract 15 III. Contemporary Social Contract Theorists 18 A. Ronald Dworkin 18 Dworkin on Natural Law and Positivism 19 Principles and Policies 20 Intensive Reiteration to Exhaustion of a Fundamental Principle 21 The Inductive Deductive Method 21 Dworkin on Law and Economics 22 Conclusion: A Potentially Powerful Synthesis as yet Undeveloped and Rife with Contradictions Due to Absent Resolution of Conflicting Presuppositions 23 B. John Rawls 23 1. The "original position" 23 2. Rawls and the School of "public choice" 27 3. Rawls Contrasted with Aristotle 27 Origin of the State 27 Human Inequality 28 The Theory of Justice 29 A Catholic Inspired Synthesis of Rights Theory and Jus Naturel? 30 IV. Libertarians 31 A. Introduction: Commonalities between different anarchisms 31 Points of divergence among anarchisms 32 B. Anarcho-Capitalistes (libertarians) 33 1. Nozick - the political theory of anarcho-capitalism 34 1. Nozick's Ultraminimal State 36 2. David Friedman - the economic theory of anarcho capitalism (libertarianism) 38 3. Conclusions: 40 a. Anarcho-capitalism is unrealistic 40 b. No dissolution of private property 41 c. Privatization of state functions. 41 d. A negationist thought 41 V. Criticisms of the Social Contract 43 1. Criticisms of the Social Contract from within its own terms 43 a. The state of nature" is an impossibility 43 b. The Social contract is but a fiction 43 2. Criticisms of the Social Contract from outside its own terms 44 a. The Necessity of Government 45 b. The impossibility of an end of history 45 VI. Conclusion: Explaining the success of the theory of Social Contract Theory 45

Keywords: social contract, Hobbes, Locke, Rousseau, Dworkin, Nozick, Rawls

JEL Classification: K10

Suggested Citation

Engle, Eric, The Social Contract: A Basic Contradiction in Western Liberal Democracy (September, 15 2008). Available at SSRN: or

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