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SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN

REFERENCE WITH NATURAL LAW

HIDAYATULLAH NATIONAL LAW UNIVERSITY


Raipur, Chhattisgarh
JURISPRUDENCE PROJECT
ON
SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN
REFERENCE WITH NATURAL LAW

SUBMITTED TO
Dr. Azim B. Pathan
Faculty, HNLU

SUBMITTED BY:SARTHAK MISHRA


SEMESTER V
ROLL NO. 131

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


REFERENCE WITH NATURAL LAW

CERTIFICATE OF DECLARATION
I hereby declare that the project work entitled Social Contract Theory in Medieval Period:
An Analysis in Reference with Natural Law submitted to HNLU, Raipur, is record of an
original work done by me under the guidance of Mr. Azim B. Pathan, Faculty Member, HNLU,
Raipur.

Sarthak Mishra
Roll. No. 131
Semester V

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


REFERENCE WITH NATURAL LAW

ACKNOWLEDGEMENTS
I would like to sincerely thank the Legal Method Teacher Mr. Azim B. Pathan for giving me this
project on Social Contract Theory in Medieval Period: An Analysis in Reference with Natural
Law, which has widened my knowledge on the scope and relevance of it in the Indian Legal
System. His guidance and support has been instrumental in the completion of this project.
My heartfelt gratitude also goes out to the staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a source of great help in the
completion of this project.
I also thank my friends for their precious inputs which have been very helpful in the completion
of this project.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


REFERENCE WITH NATURAL LAW

TABLE OF CONTENTS
OBJECTIVES................................................................................................................................5
RESEARCH METHODOLOGY.................................................................................................5
INTRODUCTION.........................................................................................................................6
CHAPTERISATION.....................................................................................................................8
CHAPTER 1..................................................................................................................................8
Main Characteristics of Natural Law Principle of Jurisprudence...................................9
CHAPTER 2................................................................................................................................11
Natural Law and the Hobbesian Social Contract.............................................................11
Natural Law and the Social Contract theory of John Locke...........................................13
Natural Law and Rousseaus Social Contract Theory.....................................................14
CONCLUSION............................................................................................................................16
BIBLIOGRAPHY........................................................................................................................17

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


REFERENCE WITH NATURAL LAW

OBJECTIVES
To discuss the concept of Natural law.
To discuss the various social contract propounded during the renaissance period with
reference to its relation to the Natural Law.

RESEARCH METHODOLOGY
The method of research adopted in this project is secondary in nature. I have referred sources on
the internet as well as books on social contract theories as well as that of jurisprudence for the
clarification of the concepts of natural law and the social contract theories available in the
university library besides adding my personal views and knowledge of the topic.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


REFERENCE WITH NATURAL LAW

INTRODUCTION
In medieval texts the term jus naturale can mean either natural law or natural right. Jus
naturale in the former sense, and also lex naturalis, mean the universal and immutable law to
which the laws of human legislators, the customs of particular communities and the actions of
individuals ought to conform.1 It is equivalent to morality thought of as a system of law. It is
called "natural" either (a) because it is taught by natural instinct, i.e. some capacity innate in
human beings, or (b) because it is accessible to "natural reason", i.e. to personal reflection
independent of any special revelation from God, such as the Christian faith claims to be, and
independent of the moral authority of other human beings; or for both reasons. This study of
social and political states has linked philosophers across the ages. Some questions that have
occupied these philosophers' discussions are: Was there ever a period of time when men lived
outside of societies and what was it like? How did men escape that period and enter into a new
time of societies? Was it through force or mutual agreement? Once a form of government is
chosen, or appointed, who rules and is the rights of the individual preserved? Several of these
questions are addressed by both Thomas Hobbes in Leviathan, and by John Locke in Two
Treatises of Government.2 Both Hobbes and Locke wrote of that period prior to the formation of
societies, referred to as the State of Nature, when individuality, rather than collectivity, described
mankind. Each also wrote of how mankind was able to leave the State of Nature and form civil
societies. This transition from the State of Nature to government was considered a contract by
both of these 17th century philosophers. Hobbes is traditionally labeled as having an alienation
theory, while Locke is considered as having an authorization theory. The fundamental difference
between alienation and authorization theories concerns what happens to an individual's rights
once the contract is executed. Alienation theory considers the contract as irrevocable. Jean
Hampton wrote in Hobbes and the Social Contract Tradition that the individuals rights are
surrendered to the Sovereign.3 The only justifiable way to retrieve one's rights after the contract
is initiated is to form a new contract. Authorization theory, on the other hand, considers the
1 LEO STRAUSS, NATURAL LAW, International Encyclopedia of the Social Sciences, 1968; NATURAL LAW, Columbia
Electronic Encyclopedia, 6th ed., Columbia University Press. 2007.

2 THOMAS HOBBES, LEVIATHAN, ed. C.B. Macpherson, New York, Penguin Books, 1985; JOHN LOCKE, TWO
TREATISES OF GOVERNMENT, ed. Peter Laslett, Cambridge University Press, 1991.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


REFERENCE WITH NATURAL LAW
contract as revocable. The individual, as opposed to the Sovereign, retains the authority to
terminate the contract at any time. Hampton called it an agency theory, retaining Hobbes' terms,
where the rights of each subject are only loaned to the Sovereign. 4 The supremacy of the human
lawgiver, as posited by Machiavelli and in their diverse ways also by the French and English
political theorists Jean Bodin and Thomas Hobbes and others, interwove in the following
centuries with the continued insistence of Hugo Grotius, the Dutch political and legal
philosopher, and others on the dominance of divine reason and humans participation in it, by
which they have access to the natural law.
In the present project topic an attempt has been made to analyze the natural law theory in
accordance with the social contract theories propounded by Hobbes, Locke, and Rousseau during
the renaissance period.

3 JEAN HAMPTON, HOBBES AND THE SOCIAL CONTRACT TRADITION, p. 3, Cambridge University Press, 1986.
4 Ibid.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


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CHAPTERISATION
CHAPTER 1
To discuss the concept of Natural law theory of Jurisprudence.
Natural law theory has been interpreted differently at different times depending on the needs of
the developing legal thought. But the greatest attribute of the natural law theory is its adaptability
to meet new challenges of the transient society.5 The exponents of natural law philosophy
conceive that it is a law which is inherent in the nature of man and is independent of convention,
legislation or any other institutional devices.
Dias and Hughes describe natural law, as a law which derives its validity from its own inherent
values, differentiated by its living and organic properties, from the law promulgated in advance
by the State or its agencies.
Similarly, according to Cohen, natural law is not is not a body of actual enacted or interpreted
law enforced by courts, it is in fact a way of looking at things and a humanistic approach of
judges and jurists. It embodies within it a host of ideals such as morality, justice, reason, good
conduct, authority. Some thinkers believe that these rules have a divine origin, some modern
sociological jurists and realists have sought resource to natural law to support their sociological
ideology and the concept of law as a means to reconcile the conflicting interests of individuals in
the society.6
A widespread concept of political and legal thought, denoting the aggregate or collection of
principles, rules, laws, and values dictated by human nature and therefore seemingly independent
of concrete social conditions and the state. Natural law has always appeared as a value category
relative to the legal order in force in a given political society and to the system of social relations
consolidated by such a legal order. In views serving as apologetics this system and the existing
laws are declared to be in conformity with natural law and natural justice; views calling for
social transformations declare the society and its laws to be in contradiction with natural law and
5 R.W. M. DIAS, LEGAL THEORIES OF JURISPRUDENCE, 5th ed., Cambridge University Press, 1987.
6 COHEN, READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY, p.660, Harvard University press, 1951.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


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justice. During the long history of natural law its content has varied according to the historical
conditions, as well as the social and political positions of its proponents. 7 The idea of natural law
had already developed in ancient times, especially in the classical world. It was used by the
Greek Sophists and Aristotle and was central to Stoicism. Along with civil and popular law
Roman jurists singled out natural law (jus naturale) as a reflection of the laws of nature and the
natural order. Cicero stated that a law of the state that contradicted natural law could not be
viewed as law. During the Middle Ages natural law was primarily theological in form. It was an
integral part of religious doctrine: in the teaching of Thomas Aquinas, for example, natural law is
the concrete expression of divine reason guiding the world and the basis of law created by the
state. Even today the idea of natural law continues to be a part of the official theological and
political doctrine of the Catholic Church. The idea of natural law had its greatest social influence
in the 17th and 18th centuries as a fundamental ideological weapon in the struggle of the
progressive forces of society against the feudal structure. During this time the principle of the
natural law was utilized as a weapon to criticize the feudal system prevalent in the society.
The 20th century has seen the so-called renaissance of natural law. This occurred because the
transition of capitalism to the monopolistic and then the state-monopolistic stage required the
reevaluation of many legal institutions, which both included natural law and was conducted with
its aid. Increased consciousness of the working masses forced the bourgeois ideologists to seek
popular slogans that could be directed against socialist ideas, and the theory of natural law was
convenient for these purposes for example, the rejection of private property is declared to be a
violation of the fundamental principles of natural law.
Main Characteristics of Natural Law Principle of Jurisprudence
The phrase natural law, has a flexible meaning. It has been interpreted to mean different things
in its evolutionary history. However, it has been generally been considered as an ideal source of
law with invariant contents. The chief characteristic features of natural law may be briefly stated
as follows:
1. It is basically a priori method different from empirical method, the former accepts things or
conclusions in relation to a subject as they are without any need or enquiry or observation
7 R.W. M. DIAS, LEGAL THEORIES OF JURISPRUDENCE, 4th ed., Cambridge University Press, 1976.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


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while empirical or a posteriori approach tries to find out the causes and reasons in relation to
the subject-matter.
2. It symbolizes physical law of nature based on moral ideals which has universal applicability
at all places and times.
3. It has often been used either to defend a change or to maintain status quo according to needs
and requirement of the time. For example, Locke used natural law as an instrument of change
but Hobbes used it to maintain status quo in the society.
4. The concept of rule of law in England and India and due process concept in USA are
essentially based on natural law philosophy.
The content of natural law have varied from time to time according to the purpose for which it
has been used and the function it is required to perform to suit the needs of the time and
circumstances. Therefore, the evolution and development of natural law theory has been through
various stages which may broadly be studied under the following heads:
1. Ancient Period
2. Medieval Period
3. The period of Renaissance
In the next chapter the third phase i.e. the phase of renaissance would be discussed in terms of
social contract theories and with reference to the natural law. This period saw the evolution of the
social contract theories propounded mainly by Hobbes, Locke, Rousseau and departure of their
theories from the natural law principle.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


REFERENCE WITH NATURAL LAW

CHAPTER 2
To discuss the various social contract propounded during the renaissance period with
reference to its relation to the Natural Law.
In the present chapter the social contract theories of Hobbes, Locke and Rousseau has been
discussed separately with reference to the natural law principle and thereby showcasing its
departure from the same.
Natural Law and the Hobbesian Social Contract
For centuries, political philosophy has dealt with methods of making the legal ordering of society
mirror what is moral and just. Central to this concept is whether or not laws in themselves are
just and moral, and how human beings with different traditions and experiences can arrive at
moral laws, reject immoral laws, and discern between the two. This concept of natural law has
been arrived at in different ways, and in some sense Thomas Hobbes version of the social
contract can be viewed not only as a competing version of natural law theory, but the modernday interpretation in most Western-style democracies as the basis for moral lawmaking.
The concept of natural law is largely attributed to St. Thomas Aquinas, a Dominican priest
during the Scholastic era where the reintroduction of Aristotelian philosophy to Western
Civilization had become all the rage. This, theory was undoubtedly borrowed from the Greeks
themselves, and most notably from Aristotles discussion on the topic of goodness in the
Nichomachean Ethics. Aquinas borrowed Aristotles understanding of goodness and happiness
and incorporates it into Catholic theology in the magnum opus Summa Theologicae. Aquinas
had made the argument in favor of natural law and had suggested the same being reflective of the
eternal law itself. As the natural law is the inherent normative quality in nature, not only does
Aquinas claim that all m en are bound to it, but by its very nature as a reflection of the eternal
law, it is both absolute and immutable.8
This was an idea that Hobbes violently rejected. The first and most basic premise that Hobbes
argues is the equality of man in his natural state, and that from this natural state springs a
constant state of warfare based on three motivators: competition, diffidence, and glory. Hobbes
states that there can never be law, and without law there is nothing to contravene, and therefore
8 WALTER FARRELL, A COMPANION TO THE SUMMA, Ch. XX, Vol. III, Sheed & Ward, 1939.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


REFERENCE WITH NATURAL LAW
no peace. He argued that the only thing that can negate these motivators are fear of dying, desire
of goods and a hope to enjoy the fruits of ones own labor. Thus, he defined natural law as:
A law of nature is a precept, or general rule, found out by reason, by which a m an is for bidden
to do, that, which is destructive of his life, or taken away the means of preserving the same; and
to omit, that, by which he thinks it may be best preserved.9
This particular definition can be categorized into three percepts defining Hobbes concept of
Natural Law.
The first precept of Hobbes is that natural law becomes the opposite of the wild and untamed
world of warfare that unrestricted exercise of the rights of nature permits, as Hobbes observes;
that every man, ought to endeavour peace, as far as he has hope of obtaining it; and when he
cannot obtain it, that he may seek, and use, all help, and advantages of war.10
The second precept of Hobbesian natural law suggests that individuals should be willing to lay
down their natural rights in or der to achieve peace.11
Finally, the third precept suggests that once these natural rights have been laid down for the sake
of peace an expressed contract has to be made between mutually consenting people and the
participating individuals are bound to honor the arrangement because without such a contract
there would be no development in state of nature and thereby the state of war would persist.12
Departure from Natural Law Principle of Thomas Aquinas
Thus Hobbes devises a theory of natural law that stands in sharp contrast to the former
Aristotelian forms of natural law expounded upon by Aquinas and his successors. The points of
departure has been discussed below.

9 THOMAS HOBBES, LEVIATHAN, p. 64 Oxford University Press, Oxford, 1996.


10 Ibid at p. 64.
11 Ibid at p. 65.
12 Ibid at pp. 66-71.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


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Under former Thomistic norms for human motive, happiness was the first and foremost goal,
whereas under Hobbes fear and self-interest were the primary motivators.
Laws and justice were also points of contention, as Thomistic natural law saw these as objective
from the standpoint of God, Hobbes saw these as belonging to the entity of the state exclusively.
Finally, the origins of natural law stand in stark contrast, for Hobbes removes and replaces the
concept of God as being advocated by the Thomistic norms with his concept of the absolute
sovereign.
Natural Law and the Social Contract theory of John Locke
According to Locke Natural law is, the law of nature is a declaration of God's will and a
standard of right and wrong. It is a law that already governs the state of nature, i.e. a
pre-social state in which all men are free and equal, and in which they live together in
peace. If men make promises to one another in the state of nature, they must consider
themselves bound by them, 'for truth and keeping faith belong to men as men, and not as
members of society.' It is likewise according to this law and prior to any positive civil
laws that each man's private property is determined. the law of nature sets bounds to
what each man is allowed to appropriate and keep for himself. Since within these bounds
a person's 'right and convenience' go together, there can be little room for quarrels about
property. Further, for Locke, God's purpose in the creation man was to 'put him under strong
obligations of necessity convenience, and inclination to drive him into society, as well as
to fit him with understanding and language to continue and enjoy it. In general, political
power for Locke is justified only in so far as it preserves men's natural rights, especially
those of life and property. Government is thus limited both by natural law and by men's
rights, and these two came to be almost identical for Locke. It can be seen that the part
played by natural law in Locke's political theory is indeed fundamental. It is because he
believes this law to be the law of the state of nature, and this state of nature to be not
altogether annulled when it is superseded by men's life in society, that for him natural
law remains valid in society and in fact sets limits to political government.
Unlike, Hobbes Locke have taken a slightly favoring stand for the natural law theory considering
it to be rational aspect of the human mind.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


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Natural Law and Rousseaus Social Contract Theory


Traditionally moral judgments in opposition to prevailing norms or law were made within the
framework either of revelation or of that most rubber-like conceptual device, natural law.
But the creed of the Savoyard vicar clearly indicated Rousseau's reluctance to accept the
authority of a Bible whose interpretation was so vehemently disputed on all sides. This rejection
would seem to have left him no option but recourse to some version of natural law theory. In its
most common and general form this theory postulated a law known by reason, and morally
obliging man on the ultimate authority of a God also known by reason.
Rousseaus Criticism of Hobbes and Locke
In Rousseaus state of nature, the primitive man was a creature of isolation seldom coming into
contact with his fellows. This description is corollary of his far more radical position that man
is not naturally, i.e., of necessity, a rational animal. This was in contradiction to the theory
propounded by Hobbes as he had previously denied mans sociality but not his rationality.
Rousseau also criticized the theory propounded by Locke that provided for a natural and
language less thought with a conventional vocabulary and syntax extrinsically added

to

antecedent and independent thought processes. He rejected this dualism, insisting that only the
most elementary kind of thought is possible without words to solidify abstract ideas and
relations. Though man has the potential for higher thought, without language this capacity can
never be realized.
Rousseaus Rejection of Natural Law Principle
There are other reasons which some have seen as evidence that Rousseau rejected natural
law. In his first version of the Social Contract, there is a chapter which contains a
critique of natural law as expounded by Diderot in an article for the Encyclopedia. Neither
the idea of God nor of natural law is innate since both have to be taught to men. It may
be a law of reason, but the reason sufficient to apprehend it develops only after the rise
of those passions which render its dictates impotent 13. This contention reflects Rousseau's
13 THE POLITICAL WRITINGS OF JEAN JACQUES ROUSSEAU , p. 449, vol. I, ed. C. E. Vaughan,
Oxford University Press, Oxford, 1962

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


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belief that the unfolding of man's rational capacities is a result of a prior growth of the
passions.
According to him, There is a natural law but in order for it to be operative certain conditions
must be fulfilled; in the absence of these conditions it is not obligatory. This idea of a
conditional natural law is by itself enough to differentiate Rousseau's version from the
absolutist versions of tradition. His reason for making legitimate laws conditional constitutes
the very heart of the Social Contract.
But unfortunately most if not all states, from Rousseau's point of view, are far from ideal,
and laws bear unequally on subjects. According to his analysis in the Social Contract this
constitutes at least a partial reconstitution of the state of nature, and the only obligation
subjects have toward rulers is prudential. Thus, from the moral point of view, subjects are
in a state of nature vis-a-vis their rulers.
In the absence of rules determined by the collective decision of the people, the individual is
thrown back on his own resources; he must be his own general will. The self-imposed law
which gives a moral dimension to an individual is not a product of his particular will, i.e.,
that will which looks to his advantage, but of his general will, i.e., that will which never
concedes him a right over others he would not willingly concede others over himself. This
principle of generality and equality responds to what otherwise is known as natural law, and
goes to the very roots of what Rousseau means by morality.
Thus, evident that Rousseau believed in natural law though his version significantly differs
from traditional accounts. It is also clear that ultimately he linked the fate of morality with
the existence of God.

SOCIAL CONTRACT THEORY IN MEDIEVAL PERIOD: AN ANALYSIS IN


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CONCLUSION
Under the leadership of anthropologists, analyses of human beings internal process of response
to the exigencies of existence within a particular cultureto conscious and subconscious psychic
drives and motivationsdeeply affected the jurisprudential study of law and society and helped
to bring natural-law thinking to a 19th-century nadir. In the anthropologist Bronisaw
Malinowskis most mature statement on the matter, he distinguished four major meanings of the
word law as important in understanding the growth of civilization. They included laws of
nature in the scientific sense of rules governing humans conscious adaptations to the
environment; rules of efficiency and convenience according to which the group lives; rules
for conflict adjustment; and rules about enforcement of the last two. No conception of natural
law, which had engaged earlier thinkers for two millennia and more, was included.
In addition the vehement criticism of the natural law principles by the social contractualists
ignited the gradual downfall of the natural law principle that had covered up the area of the legal
for well a period of more than seventeen centuries. This process was sped up by the emergence
of new schools of jurisprudence including Analytical School of Law, Historical School of Law
and Sociological school of Law.

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BIBLIOGRAPHY
THE POLITICAL WRITINGS

OF

JEAN JACQUES ROUSSEAU , ed. C. E. Vaughan, Oxford University

Press, Oxford, (vol. I, 1962).


THOMAS HOBBES, LEVIATHAN, Oxford University Press, Oxford, (1996).
WALTER FARRELL, A COMPANION TO THE SUMMA, Sheed & Ward, (Vol. III, 1939).
R.W. M. DIAS, LEGAL THEORIES OF JURISPRUDENCE, Cambridge University Press, (5th ed., 1987).
COHEN, READINGS

IN

JURISPRUDENCE

AND

LEGAL PHILOSOPHY , Harvard University press, (5th

ed.1951).
R.W. M. DIAS, LEGAL THEORIES OF JURISPRUDENCE, Cambridge University Press, (4th ed. 1976).