Academic

Engle on Social Contracts & Natural Law

By Lawrence Solum

Eric Engle (Universität Bremen) has posted The Social Contract: A Basic Contradiction in Western Liberal Democracy on SSRN.  Here is the 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.

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Full post as published by Legal Theory Blog on September 22, 2008 (boomark / email).