Hobbes's Contract Theory

Abstract

Hobbes's ContractTheory LARRY MAY POLITICALPHILOSOPHERShave traditionally been interested in contract theory as a hypothetical or potential explanation of political obligation and the origin of the state. ~Constitutional theorists have been interested in contract theory as an actual explanation of the legitimacy of certain decision-making procedures especially within democracies. 2 Political philosophers have predominantly addressed themselves to the "social contract" that might have been struck among persons in the state of nature. Constitutional theorists have addressed themselves to what has sometimes been called "the contract of government" that exists between the citizens of a state and the sovereign ruler of that state. Political philosophers who call themselves contract theorists are often criticized because they do not distinguish between the actual origin of a state and its hypothetical origin, especially when it is clear that a particular state did not come into being by means of a social contract. Constitutional theorists who employ contract-theoretical terms are often criticized because they fail to question the justification of the conditions of the contract of government. Some of this criticism could be met by providing a contract theory with two parts: one part describing the reasonableness of having a state and one part describing the rights and limitations of any sovereign ruler who relies on the consent or agreement of the people as the basis of his3 political authority. In this paper I shall argue that this is precisely what Hobbes's contract theory provides. Hobbes presented a contract theory that contained both a hypothetical initial situation to illustrate his views on human conduct and social interaction, and a constitutional doctrine describing the legitimacy and limitations on sovereignty. To understand Hobbes properly, I shall argue, it is vitally important to keep these two contract doctrines separate . The first tells us something, much like John Rawls's own discussion of the original position,4 about the reasonableness of political obligation. The second doctrine explains the nature of the constitutional authority that political rulers are said to have. The first doctrine, as with most social-contract doctrines, is a doctrine of moral justification for| am quite grateful to AnthonyQuinton and the editors of JHP for their many helpful suggestionson earlierdrafts of this paper. l See RobertNozick's very interestingdiscussionof the meritsof this type of enterprisein contemporary politicalphilosophy(Anarchy, State and Utopia [NewYork:BasicBooks, 1974l,chap. 1). 2A good examplehere is the discussionin Federalist 49 and 50 or any recentSupremeCourt opinionon "those rightsretainedby the people."NormanRedlich'sessayon that subjectis particularlyinteresting("Are There Any Rights . . . Retainedby the People," New York Universi~. Law Review 37 [November, 1962]: 787-812). 3I willuse the masculinepronounthroughoutthisessayin orderto be consistentwithHobbes'sown usage. 4Rawlsadmitsthatthereare a varietyof "possibleinterpretationsof the initialsituation."His own interpretation ,the originalposition,"is not intendedto explainhumanconductexceptinsofaras it tries to accountfor our moraljudgments."It is not intendedto be anythingother than a hypotheticalconstruct. I willargue that Hobbes viewedhis "originalcontract"in much the same way. See John Rawls,A Theol. of Justice (Cambridge :HarvardUniversityPress, 1971),pp. 120-21. [195] 196 HISTORY OF PHILOSOPHY the generation of the state. The second doctrine is properly a jurisprudential doctrine concerning the transfer of right necessary for the institution of any sovereign authority. These two contract doctrines, the first hypothetical and moral, the second jurisprudential and constitutional, are intertwined in the central chapters of Leviathan (14-18). It is my intent clearly to separate these two contract doctrines and then to show their importance for contemporary legal and political philosophy. Before doing this I shall set out the notion of third-party beneficiary contracts, which is very close to the notion of ,contract Hobbes employed in both parts of his contract doctrine. I, The Legal Background The aspect of legal theory I wish to examine concerns the so-called "third-party beneficiary contracts." By the late sixteenth century a new whisker was added to the chin of assumpsit and contract actions. In a number of cases a party who was not a member of the parties involved in a contract, but who was to receive a benefit from that contract, was given the right to bring an action before the court. Here is what the legal historian G. W. F. Dold says about this situation. The present...