Read this article to learn about the 3 Theories of the Ground of Political Obligation.
(a) The Theory of Divine Right:
Upon this theory the necessity which stands above and apart from the citizen and the governing authority is that of the Divine Will and ordinance. I am obliged to obey the governing authority because I am obliged to obey God, and because any governing authority is essentially an emanation and delegation of divine authority.
This theory goes back to the East and the ancient Eastern monarchies; but in its European form it is based on the teaching of St. Paul. ‘Omnis anima potestatibus sublimioribus subdita sit: non est enim potestas nisi a Deo: quae autem sunt a Deo, ordinatae sunt.’ St. Thomas Aquinas, followed the teaching of St. Paul, and accordingly ascribed to God the principium of all authority.
But knowing also the doctrine of the Roman lawyers, that the princeps derives his authority and power from an act of the people in delegating and transferring to him omne suum imperium et potestatem, and knowing too the doctrine of Aristotle that the assembled people should have the right of electing its magistrates initially and calling them afterwards to account, St. Thomas adds a rider to the teaching of St. Paul.
If God Himself gives the principium of authority, the people determines its modus, or permanent constitutional form, and it also confers the exercitium, or actual enjoyment and employment of power by the person or body of persons possessing it for the time being. (St. Thomas also suggests that the people may criticize, and in the event of misuse withdraw, the exercitium which they have conferred: indeed in one passage of the De Regimine Principum he even says that ‘a ruler who fails to act faithfully, as the office of kingship demands, in the government of a community, deserves to suffer the consequence that his subjects should refuse to keep their pact with him’, thus appearing to combine a theory of social contract with the theory of divine right.)
The theory of St. Thomas, which was the generally accepted theory of the Middle Ages, was thus a theory that the king, as the head of a body politic, had a claim to the necessary obedience of each member of that body in virtue of an authority coming from God, but coming, in its course, through the body politic of which he was head.
The thought of the sixteenth century, departing from that of the middle Ages, amputated as it were the body from the head: it rejected the notion that authority came to the head through the body: it left the head with a solitary authority unqualified by any act of the people.
It is in that century, but not before, that we find a new theory of divine right as the right of a bodiless head. This bodiless head may either be regarded as receiving authority directly from God, or he may be held, as he is by Sir Robert Filmer, to have received it indirectly through a patriarchal succession from Adam who received it originally and directly from the hands of his Maker.
The result of the latter view is a theory of divine hereditary right, with the emphasis on the word ‘hereditary’; but both views alike involve a theory of divine right which leaves no room or place for the body of the people. The medieval theory had been monarchico-democratic: the theory which emerges in the sixteenth century is purely a monarchical theory, and it is especially so in the seventeenth-century version which makes the line of heredity the line of the transmission of right.
It is not necessary here to accept or reject the theory of divine right. There is a sense in which, at any rate to the theist, it is eternally true that all power is of God, and that every holder of power is responsible to God; and if it is also eternally true that the holders of power are responsible to the community, we have seen that the medieval version of the theory, if not in the later versions of the sixteenth and seventeenth centuries, recognized and proclaimed this truth.
But the form and vesture of the theory belong to a vanished age, in which kings governed as well as reigned; and while we may recognize a permanent core of truth in its essential doctrine, we must also recognize that the setting of the core is now an antiquity. Indeed in the sixteenth century thought was already moving away from the idea that kings derived authority from God, and was seeking to give them a different title.
(b) The Theory of Prescriptive Possession:
Upon this theory, which began to be advanced in France, and which may be termed the theory of legitimism, the monarch rules by customary right: not jure divino (though that right might also be alleged as an additional support), but jure consuetudinario.
Long possession, ripening into property, is the title of kings to governing authority; and from this title, upon the assumption that men are tied by necessity to respect all property-rights, the conclusion is drawn that subjects are tied by necessity to respect the property-right of kings to the exercise of governing authority.
Bodin, in his De Republica of 1576, connected a theory of this order with a theory of patriarchy, though he did so without bringing into his argument, as Filmer afterwards did in his Patriarcha of 1680, the idea of a divine commission of authority to the original patriarch Adam. The theory of Bodin may be resumed in three propositions.
The first is that the family is a given natural fact, which you must simply accept, and that it naturally involves for its head a right both of property in possessions and of authority over persons, which you must also simply accept. The second is that the family is the source and origin of the State.
The third, which follows logically on the second, is that the authority of the head of the State is the same authority, with the same natural title, as that of the head of a family, inasmuch as the State is only a derivative and extension of the family.
The theory of Bodin is in one way superior to the theory of divine right current in his day. He makes the king not a bodiless head, but the head of a family; and by thus introducing the idea of the family he gives to governing authority not only the title of prescriptive possession, but also a natural title grounded in human feeling.
The objection to his theory is that the State has long ceased to be, if indeed it ever was, an extension of the family, and that the position of the head of a State is therefore not the position of the head of a family—still less (as he seems to assume) the position of the head of a family vested with that peculiar degree of patria potestas which was practiced among the early Romans.
Another French jurist, Loyseau, in his Traite des Offices of 1614, is more thoroughgoing than Bodin, and puts his trust in the simple theory of prescriptive possession, which is the essence of legitimist ideas.
He does not seek to justify the claims of governing authority to impose obligation on subjects by basing such authority upon something exterior to itself, as even Bodin does when he invokes the name and sanction of the family: he is content to base it upon itself, if only it includes within itself the element of duration.
Kings, he holds, have arisen in different ways, some by popular concession, others by simple force and ‘ancient usurpation’; but as they now exist, after the process and passage of time, ‘they have all acquired by prescription the property in sovereign power’.
In other words, continuous use has given them something more than the exercise of authority: it has given them ownership of authority; and their subjects are thus tied to them, and to the authority which they own, by the necessity of respecting ownership and all the rights which it carries.
This mere legitimism could, and did, ally itself with ideas of the divine right of kings, on the plea that a long-time warrant was also the warrant of God. It might carry weight in that conjunction; but in itself, and taken by itself, it fails to explain why the subject is tied and obliged to governing authority.
It degrades authority over persons to the level of property in things; and it brings the problem of political obligation down into the area of civil obligation, to which it does not belong and in which it cannot be solved. Moreover it is a theory which has a sole application to monarchy, and to monarchy which is a governing as well as a reigning monarchy.
(c) The Theory of Contract:
Upon this theory in its simpler form the citizen is tied to the governing authority, first, because he, in common with all other citizens, has made a contract with a person or body of persons, under which that person or body receives authority in return for the protection and service of declaring and enforcing a system of legal rules, and, secondly, because he and his fellows are bound by natural law to respect and perform the terms of that contract.
But reflection soon suggests to the mind that this simpler form, taken by itself and in itself, is inadequate and incomplete. How could men bargain collectively with the person or body of persons to be vested with governing authority, unless they were already of the nature of a collective body, and how are we to explain their being already of that nature?
In order to answer that question thinkers of the school of contract were ultimately forced to the conclusion that there was a double contract, or more exactly, two stages of contract: first the contract of society, the pacte d’ association, as it is termed by Rousseau, or the Gesellschaftsverlrag, as it is termed by Gierke, or ‘the social contract proper’, as it may also be termed; and secondly, the contract of government, or the pacte de gouvernement, or the Herrschaftsvertrag, or the social contract loosely (and even improperly) so called.
Under the ‘contract of society’ all persons in a given area, an area supposed somehow to be definite, agree with one another to form and to be a collective body of the nature of a societas or partnership. Under the ‘contract of government’, or the social contract loosely so called, this societas or partnership, once it is formed, agrees with a person or body of persons, supposed somehow to be separate from it, to institute a potestas and to confer it upon that person or body on certain conditions.
The first contract thus creates societas, and the second potestas; or, in the specific terms of Roman law, the first contract is the result of an act of simple consent expressing itself in the form of partnership or societas, and the second the result of a similar act expressing itself in the form of agency, or, as it was called by the Roman lawyers, mandatum.
Is there any element of truth in the first of the two contracts thus distinguished: the contract of society? If the notion of a social contract is meant to explain the nature and the existence of a national Society, as the use of the word ‘social’ implies, it fails to achieve its object, not only because a national Society is never actually the product of contract, but also because it is totally unlike anything that could possibly be produced by contract.
A national Society, knows no limits to its purposes, as contractual partnerships always do: it cannot be dissolved by agreement, as partnerships can be: it has, as a national Society, no organization or administration, as partnerships always have.
If, however, the idea of a social contract is meant to explain the nature and existence not of national Society, but of the national State—the State as distinguished from national Society, the State as a legal association superimposed on such a Society—then it may be said to achieve its object.
Though we cannot apply the idea of contract to national Society, and though the adjective ‘social’ is a misnomer, we can apply the idea of contract to the national State, and we may not improperly speak of a political contract. But the ‘political contract’ of which we may thus speak is something entirely different, as the course of the argument will show, from the ‘contract of government’ assumed by the old thinkers of the school of contract.
If it has to be distinguished from the contract of Society, it has equally to be distinguished from the contract of government as that contract used to be conceived. How, then, are we to conceive the nature of this political contract? We must begin by admitting, or rather contending, that it does not serve to explain, and is not for a moment meant to explain, the chronological antecedents of the State in general, the State at all times and places in all its manifestations.
It serves only to explain, and is meant only to explain, the logical presuppositions of the State in particular: the State as it exists at the present time, and as it exists at the present time in the Western world—the world of Western Europe, the British Commonwealth, and the Americas. If we look at the State in general, as it arose and grew in the course of past time, we are bound to recognize that it did not arise and has not grown in the climate of contract.
It was formed and developed by a variety of factors: the bond of kinship uniting, or supposed to unite, a people or group of peoples; military force and diplomatic policy welding different peoples into some sort of union; the bond of neighbourhood joining the residents of some definite area in a common system of economic and social relations, apart from, or over and above, any bond of kinship or any employment of force and policy.
But if we look at the State in particular, as it exists in our own time and in the area of the Western world, we are equally bound to recognize that it lives and has its being in a climate of contract, and of all the concomitants of contract: mutual concession, mutual toleration, mutual discussion, and general give and take. The modern State of the Western world is a legal association.
As such it depends upon, and is constituted by, a memorandum of association, or a set of articles of association, or in other words a ‘constitution’, which states the contractual terms on which the association is made and under which it henceforth acts.
The constitution of a State may thus be regarded as the contract on which its action, and the action of its members in their capacity of members, is ultimately dependent; and from this point of view political obligation may be regarded as contractual obligation.
This is especially plain where there is a written constitution, as there is in the great majority of the States of the Western world, but it does not cease to be plain where the constitution is partly or even largely unwritten: there is, after all, no difference of kind between the ‘written’ and ‘unwritten’ constitution, and indeed the sense of obligation may be felt as much to the ‘unwritten’ as to the ‘written’ constitution.
The contractual nature of the constitution, and the contractual nature of the obligation incumbent under it on each citizen, becomes even more plain when the constitution contains not only a ‘frame of government’, or a statement of means and methods, but also a ‘declaration of rights’, or a statement of ends and purposes; for such a statement of ends and purposes is even more obviously a formulation of contractual terms than is a statement of means and methods.
We may now turn from our examination of the truth of the first form of contract, the contract of Society, to an examination of the truth of the second, the contract of government. Here we may say at once that the logic of the previous argument necessarily involves us in the rejection of any idea of a separate contract of government.
If we accepted that idea, we should be committed to the view that the citizen is tied or obliged to the governing authority by the necessity of a contract separately and specifically made with that authority: a contract other than, and additional to, the political contract expressed in the constitution.
There is no need for any such view; and if it were adopted, it would unduly exalt the governing authority by making its members a body separate from the general civic body, and independent enough to negotiate on equal terms with that body. The one political contract expressed in the constitution is sufficient for every purpose, and adequate in itself to explain the basis of governing authority.
That one contract, so expressed, determines all positions in and under the constitution it determines governing position as well as, and along with, the general civic position of the ordinary citizen. A person who is a member of the governing authority simply adds to his general civic position, in which he is already placed and obliged by the terms of the political contract, a further and particular governing position, in which he is also placed and obliged by the terms of the very same contract.
If he differs from the ordinary citizen in having two positions, and not one only, he owes both of the positions which he holds to the same origin in the same contract, the one and only contract expressed in the constitution. When once we grasp the idea that the constitution of the State is the one and only contract, we can see that, fundamentally, the citizen and the holder of governing authority stand on the same footing by virtue of an identical title.
The idea of a separate contract of government, giving a separate title to the holder of governing authority, could only arise in the absence of a constitution: it was a rudimentary attempt to provide the rudiments of a constitution, in the form of a bilateral contract regarded as simply determining the position of governing authority in its relation to the general body of citizens, and determining nothing more.
Actually the constitution, as men saw in the light of further experience (beginning with the American Revolution of 1776, and continued in the French Revolution of 1789), determines much more than that: it determines all positions – it regulates equally, and in the same way, the position of governing authority and the position of ordinary citizens. When once men grasped the breadth of the contract of the constitution, the rudimentary idea of a contract of government had served its turn, and faded away.