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Does social contract theory justifies political legitimacy?
Most people support the state under which they live and accept it's laws and policies. Social contract theory states that the state order is justified and is politically legitimate and people obey the laws not because they are afraid of punishment, but also because they feel morally obliged to do so and in fact it is in every individual's interest to obey the law. So political legitimacy is not really concerned with formal legitimacy. It provides the “invisible bonds” of political society and holds it together, even if the society consists of different individuals with different interests.
There are many different explanations of political legitimacy made by many famous political theorists. Social contract theory seems to be most influential and convincing theory, though prudential and constructivist theories deserve some attention as well. From these theories, we can distinguish three different approaches to the question of political legitimacy: normative approaches, which are represented by social contract theories, prudential and constructivist approaches represented by theories of the same name. These approaches question political legitimacy from different points and different theorists tend to use just one certain approach rather than others or combination of theories.
Normative theories were developed mostly by such philosophers as Thomas Hobbes, John Locke and Jan-Jacques Rousseau. Their perception of social contract differed, but all their theories have one thing in common: Hobbes's absolutism, Locke's constitutionalism and Rousseau's general will had the same core idea political obligation is based on the consent of free individuals, but not on tradition or force.
David Hume's theory of utility and Jeremy Bentham's greatest happiness principle are the most significant prudential theories. These political theorists came to conclusion that people obey the law because it is in their interest to live in political society where the state provides all sorts of protection. They thought that prudential argument on its own was sufficient to explain political obedience.
Constructivist theories are represented by Karl Marx's theory of state power and Michel Foucault's discourses of power. Marx and Foucault completely denied normative and prudential approaches and argued that these theories are constructed as part of the practices of society, and it is these practices that ought to be understood.
As I have mentioned before, normative theories seem to offer more or less convincing approach to political legitimacy, though it is clear that there are a lot of weaknesses in this theory as well. The fundamental question of political legitimacy in the theories of social contract is: “why ought citizens to support the state and obey its law?” This question sets all the normative theories theories in the right direction as it asks what are the the moral grounds for people to obey the law. In comparison, prudential and constructivist approaches ask “why do citizens support the state and obey its laws?” and “how citizens are made to obey the laws?” which I consider to be secondary questions when individual thinks why they support the state. But of course, it would be wrong to say that all people in contemporary society support the state order purely out of moral obligation to do so. It is true as well that people obey the law because it is in their interest and also because the state possesses the powers which make people obedient to its law.
Every social contract theory mentions a situation where people live under natural law without any organized society, so called “state of nature”. This is the starting point for these theories because it shows what is actually important for politics, the state and legitimacy. But opponents of normative theories argue that such “state of nature” is mere a fiction and is used in order to make spurious “natural” justification. It is true that “state of nature” does not exist anywhere in the modern world and probably early humans had some basic organizations with certain rules. I think such imagination is a good device to see and compare what is good for society.
Voluntary consent is the core of social contract theories and ,of course, it has been a subject to criticism. The original contract and associated consent seem to be just hypothetical, otherwise each generation would have to give its consent if asked to renew the social contract. Also would individuals give their consent at present day? Some theorists that this consent is tacit and people agree by just living in the society and accepting its law. Unfortunately, the fact is that most citizens have little choice but to agree with given situation because they are simply unable to uproot themselves to live in another place and it is practically impossible to find a place where there is no state.
Another part of criticism is directed at the notion of “individual” in normative theories. Social contract theory promotes quite an abstract concept of the “individual” without the cultural identity, gender, economic positioning, ethic or national loyalties and so on, that go to make up real individuals living in political societies and which affect individual life chances and political roles.
The notion of “natural” rights, which is mentioned quite often by social contract theorists, is another weakness of these theories. Somebody's right to something means another party's obligation to provide this. Thus rights always imply duties on others which would be enforceable by law or by other means and otherwise these rights would be meaningless. Jeremy Bentham argues that there are no such things as “natural” rights because in the state of nature there are no means to enforce these rights. “Natural” rights do not reflect existing rights, but they point at things that people wish to see in legal rights.
One argument in support of social contract theory is that modern democratic society principles are mostly based on this theory. There are strong links between some classics of social contract theory and modern democratic ideas. John Locke believed that the majority determines the law and policies of the state, but in his time this majority consisted mostly of propertied males. Similarly by the word “individuals” Thomas Hobbes understood males only which does not go along with modern democratic principles.
One of the most important political philosophers of recent times, John Rawles offers a contemporary version of social contract theory in his theory of justice. He criticized his main opponents, prudential theorists for not taking rights seriously. Hume and Bentham were seeking to maximize overall utility or happiness in a society. Rawls argued that supporters of these theories would be happy with an overall increase in utility or happiness, even in the case when the distribution is very uneven and most people would not benefit from this overall increase. Better society would put priority on rights over maximization of happiness and utility. Of course, liberty and equality are key values of democratic society, still some people consider that the idea of human equality is opposed to human nature.
To sum up all the arguments above, I would say that social contract theory has a lot of weaknesses but it is less vulnerable to criticism comparing to all alternative theories. In spite democracy being most widespread political system, it can not be treated as eternal truth and similarly with social contract: it is the most popular approach to political legitimacy but definitely it is far from being perfect.