《社會契約論》-名書簡介
　　
　　作者：（法國）盧梭（1712-1788年）
　　類型： 政治理論著作
　　成書時間：1762年
　　《社會契約論》-背景搜索
　　
　　盧梭出生於瑞士日內瓦一個鐘錶匠家庭，從小失去母親，靠別人撫養教育長大。雖然生活條件艱苦，但他發奮圖強，自學成纔。16歲離傢外出流浪，當過學徒、僕役、私人秘書、樂譜抄寫員。在巴黎，他展現了自己的才華，1750年，盧梭以徵文《論科學與藝術》獲頭等奬而出名。得到了許多上流社會貴婦人的愛慕。這些擁金百萬的貴婦為他供應舒適的生活，給他介紹所需要認識的人，盧梭很快就進入了完全不同的生活圈子。
　　
　　從 1762年起，盧梭由於寫政論文章，與當局發生了嚴重的糾紛。他的一些同事開始疏遠他，大約就在這個時期，他患了明顯的偏執狂癥。雖然有些人對他表示友好，但他卻采取懷疑和敵視的態度，同他們每個人都爭吵過。他一生的最後20年基本上是在悲慘痛苦中度過的，1778年他在法國邁農維爾去世。
　　
　　推薦閱讀版本：何兆武譯，商務印書館出版。
　　《社會契約論》-內容精要
　　
　　《社會契約論》全書共分4捲，第一捲主要論述了人類是怎樣由自然狀態過渡到政治狀態的，契約的根本條件是什麽；第二捲主要討論國傢的立法問題；第三捲論述的是政治法即政府的形成；第四捲在繼續討論政治法的同時闡述了鞏固國傢體製的方法，從古羅馬歷史出發論述了主權者意志實現的某些細節。
　　
　　“人是生而自由的，但卻無往不在枷鎖之中，自以為是其他一切的主人，反而比其他一切更是奴隸。”《社會契約論》的開篇第一句話就提出了這個振聾發聵的觀點。盧梭的這一論斷是在君主專製制度橫行歐洲的時代，針對英國王權專製論代表人物費爾瑪關於“沒有人是生而自由的”這一絶對君主專製制度賴以依存的理論而提出來的。這本書以反對封建專製、倡言民主共和、主張人民主權為其主題和中心內容，提出了富於革命性的憲政理論。
　　
　　盧梭認為，自由的人們最初生活在自然狀態，人們的行為受自然法支配。自然法以理性為基礎，賦予人類一係列普遍的、永恆的自然權利，即生存、自由、平等、追求幸福、獲得財産和人身、財産不受侵犯的權利。由於自然狀態存在種種弊端，自由的人們以平等的資格訂立契約，從自然狀態下襬脫出來，尋找出一種結合的形式，使它能以全部共同的力量來衛護和保障每個結合者的人身和財富，並且由於這一結合而使每一個與全體相聯合的個人又衹不過是在服從自己本人，並且仍然像以往一樣地自由。這種結合的形式就是國傢。由於國傢是自由的人們以平等的資格訂立契約産生的，人們衹是把自然權利轉讓給整個社會而並不是奉獻給任何個人，因此人民在國傢中仍是自由的，國傢的主權衹能屬於人民。
　　
　　然後，盧梭進一步闡述了人民主權的原則：主權是不可轉讓的，因為國傢由主權者構成，衹有主權者才能行使主權；主權是不可分割的，因為代表主權的意志是一個整體；主權是不可代表的，因為 “主權在本質上是由公意所構成的，而意志又是絶不可以代表的；它衹能是同一個意志，或者是另一個意志，而絶不能有什麽中間的東西。因此人民的議員就不是、也不可能是人民的代表，他們衹不過是人民的辦事員罷了；他們並不能做出任何肯定的决定”。同時，主權是絶對的、至高無上和不可侵犯的，因為主權是公意的體現，是國傢的靈魂。基於這樣的理論，盧梭反對君主立憲而堅决主張民主共和。
　　
　　《社會契約論》還論述了一係列法律基本理論，在其中貫穿着以人民主權為中心內容的資産階級民主主義精神。盧梭指出法律是人民公共意志的體現，是人民自己意志的記錄和全體人民為自己所做的規定。法律的特點在於意志的普遍性和對像的普遍性，前者指法律是人民公意的體現，後者指法律考慮的對像是全體的行為而非個別人。
　　
　　同時，他闡述了法律與自由的關係：首先，法律與自由是一致的，人民服從法律就是服從自己的意志，就意味着自由。其次，法律是自由的保障。一方面，人人遵守法律，才能給人們以享受自由權利的安全保障；另一方面，法律可以強迫人們自由。
　　
　　此外，盧梭還係統地提出了立法理論。他認為要依法治國就要有理想的法律，在製定法律時必須遵循下列原則：立法必須以謀取人民最大幸福為原則；立法權必須由人民掌握；由賢明者具體承擔立法的責任；立法要註意各種自然的社會條件，法律衹不過是保障、遵循和矯正自然的關係而已；既要保持法律的穩定性，又要適時修改、廢除不好的法律。
　　
　　“人是生而自由平等的，這是天賦的權利”，《社會契約論》中的這一 理論，開創了歐洲及全世界民主平等思想之先河，它的“人權天賦“，主權在民”的新學說嚮“君權神授”的傳統觀念發起了挑戰。它所揭示的“人權自由、權利平等”的原則，至今仍作為西方政治的基礎。
　　《社會契約論》-專傢點評
　　
　　盧梭是18世紀法國啓蒙運動傑出的政治思想傢、文學家。他的才思文藻風靡了當時的整個歐洲，並為後人留下了一係列劃時代的巨著。很少有幾個哲學家能帶來盧梭著作那樣的震撼。他的《藝術與科學談》獲法國第戎奬，使他榮獲歐洲哲學大師稱號。他的文學名著《新愛洛伊絲》在世界文學史上有着很高地位，使他躋身於啓蒙時期著名文學家的行列。《社會契約論》又譯作《民約論》是他最為傑出的代表作之一，被譽為“人類解放的第一個呼聲，世界大革命的第一個煽動者”。盧梭是歐洲啓蒙運動中重要的思想傢，與伏爾泰齊名。他的主要作品有《懺悔錄》、《愛彌兒》、《社會契約論》、《新愛洛伊絲》。他的主要思想：天賦人權學說，提出“人民主權”的口號。其思想是法國大革命中雅各賓派的旗幟，對歐美各國的資産階級革命産生了深刻影響。
　　
　　他的《社會契約論》中的“主權在民”一說，就劃分了一個時代。
　　
　　《社會契約論》盧梭將野花送給喂奶的母親
　　《社會契約論》第一次提出了“天賦人權和主權在民的思想”。它剛一問世就遭到了禁止。盧梭本人也被迫流亡到英國。但《社會契約論》所提倡的民主理論卻很快風靡全世界。它引發了震驚世界的法國大革命。法國國傢格言“自由、平等、博愛”便來自《社會契約論》。1789年法國國民代表大會通過的《人權宣言》中“社會的目的是為大衆謀福利的”、“統治權屬於人民”等內容充分體現了《社會契約論》的精神。《社會契約論》還對美國的《獨立宣言》産生了重要影響，從羅伯斯庇爾到列寧都曾用《社會契約論》為自己的政權做解釋。1978年，在紀念盧梭逝世200周年的活動中，專門召開了國際研討會，研究盧梭的思想，出版他的新傳，推出以他為題材的電視劇。他的遺骸被安放在法國的偉人祠內。盧梭在《社會契約論》中預見的“消費者的各種陷阱，大城市的騷亂以及毀滅性的軍費負擔”等等，都已成為當代社會的現實問題。目前，單在法國就有150多位學者在專門研究盧梭的思想。
　　
　　有說盧梭的政治理論深受柏拉圖的《理想國》的影響。《理想國》的概念，建立於人性善的理念基礎上，柏拉圖筆下的蘇格拉底說，“衹有正直的人才會幸福”，“善的意志”成為他的理想國的基礎。盧梭也相信人性善，他提倡寬容理性，堅定地反對任何政治暴力。同是論述理想國的原則，不同於柏拉圖，盧梭將其理論框架完全建立在“人生而自由”的基礎之上，也就是說“自由意志”。這個基礎就實在多了。很早以前，人們有一個更好的但文言的說法：“天賦人權。”由天賦人權作為第一原理，他所構造的不再衹是理想，而是現代公民社會的基本原則。公民社會中，公民失去了自由人無所不為的自由，而得到公民的政治權利、政治自由。他的《社會契約論》（又譯《民約論》）所要解决的是人權和法律的有機結合。從此，合法性衹能來自人民，成了盧梭的繼承者和背叛者的共同的理念。前者産生了美國革命和民主的建立，後者以人民之名專權屠殺。盧梭，作為“主權在民”的勾畫者，就是在200年後還處於爭論的中心：他的理論到底是在提倡民主自由，還是在提倡極權暴政？
　　
　　《社會契約論》哲學家盧梭大部頭著作
　　人權是屬於個體的，法律是屬於國傢的。個體約定而成國傢的合理性，是法律有效性和政權合法性的終極判斷。自由，不是來自法律對個人的保護，而是來自個體對立法的徹底參與。這是切實保障個體自由的先决條件。在這一過程裏，個體利益的“交集”而非“並集”（不完全是數學上的那種）形成公民意志——主權者的意志——一般意志，而這種主權者因為個體的不斷參與，其內容是常新的，其利益與個體利益共榮的。從這一點出發，多數人說了算的約法三章必然成為主權在民的道德的體現方式。
　　
　　盧梭把政權明白地分成了立法和行政兩個部分，前者屬於社會契約的範疇，而後者不是契約的內容（因此是可變可推翻的）。這個理念對後來民主政治的發展有着不可磨滅的貢獻。在盧梭之前，孟德斯鳩的《論法的精神》對法律的理解更加深刻，惟缺盧梭的“主權在民”的動力。《社會契約論》自始至終衹揚棄了一種體製：專製政府。按盧梭的話，這就是那種蔑視法律把個體的權力高於主權者之上的體製。其他的體製，盧梭僅僅論述了它們合法的自然依據。從直接民主製、貴族代議製到君主立憲製，統治的根據必須是人民主權———其真正表達就是法律。盧梭並進而把任何真正依法而治的政體統稱為共和政體。在盧梭看來，他那個時代的政治社會形態是腐朽的，他要到古希臘時代才能找到合理的回歸。
　　
　　《社會契約論》是世界政治法律學說史上最重要的經典之一，是震撼世界的1789年法國大革命的號角和福音書。它闡述的許多原則原理不僅在革命之初被載入法國《人權宣言》等重要文獻中，在革命後的長時期裏成為資産階級的政治法律制度的基石。盧梭的思想對後世思想傢們理論的形成有重大影響。
　　
　　盧梭的政治著作中有許多思想獨特新穎，引人入勝。但是總體說來就是一種追求平等的強烈欲望和一種同樣強烈的感受：現存社會制度的不合理已經達到了令人不能容忍的程度，人生下來本來是自由的，但是無論走到哪裏都要戴上枷鎖。盧梭自己可能並不喜歡暴力行為，但是他無疑激勵了其他人實行暴力革命，逐步改革社會制度。
　　
　　有人批評盧梭是一個極其神經質的人，是一個大男子主義者，是一個思想不切實際的、糊塗的思想傢，這樣的批評大體上是正確的。但是遠比他的缺點更重要的是他的洞察力和傑出的創造精神所閃現出來的思想火花，兩個多世紀以來，不斷地影響着現代思想。
　　《社會契約論》-妙語佳句
　　
　　我看到了另一個世界，我的全部激情都被對真理、對自由、對道德的熱愛窒息掉了。
　　誰第一個把一塊土地圈起來並想到這是自己的，而且被頭腦簡單的人所相信的話，那他就是文明的奠基者。

　　Social contract describes a broad class of theories that try to explain the ways in which people form states to maintain social order. The notion of the social contract implies that the people give up sovereignty to a government or other authority in order to receive or maintain social order through the rule of law. It can also be thought of as an agreement by the governed on a set of rules by which they are governed.
　　
　　Social contract theory formed a central pillar in the historically important notion that legitimate state authority must be derived from the consent of the governed. The starting point for most of these theories is a heuristic examination of the human condition absent from any structured social order, usually termed the “state of nature”. In this condition, an individual’s actions are bound only by his or her personal power, constrained by conscience. From this common starting point, the various proponents of social contract theory attempt to explain, in different ways, why it is in an individual’s rational self-interest to voluntarily give up the freedom one has in the state of nature in order to obtain the benefits of political order.
　　
　　Thomas Hobbes (1651), John Locke (1689) and Jean-Jacques Rousseau (1762) are the most famous philosophers of contractarianism. However, they drew quite different conclusions from this starting-point. Hobbes advocated an authoritarian monarchy, Locke advocated a liberal monarchy, while Rousseau advocated liberal republicanism. Their work provided theoretical groundwork of constitutional monarchy, liberal democracy and republicanism. The Social Contract was used in the Declaration of Independence as a sign of enforcing Democracy, and more recently has been revived by thinkers such as John Rawls.
　　
　　Overview
　　
　　According to Thomas Hobbes, human life would be "nasty, brutish, and short" without political authority. In its absence, we would live in a state of nature, where we each have unlimited natural freedoms, including the "right to all things" and thus the freedom to harm all who threaten our own self-preservation; there would be an endless "war of all against all" (Bellum omnium contra omnes). To avoid this, free men establish political community i.e. civil society through a social contract in which each gain civil rights in return for subjecting himself to civil law or to political authority.
　　
　　Alternatively, some have argued that we gain civil rights in return for accepting the obligation to respect and defend the rights of others, giving up some freedoms to do so; this alternative formulation of the duty arising from the social contract is often identified with arguments about military service.
　　Violations of the contract
　　
　　The social contract and the civil rights it gives us are neither "natural rights" nor permanently fixed. Rather, the contract itself is the means towards an end — the benefit of all — and (according to some philosophers such as Locke or Rousseau), is only legitimate to the extent that it meets the general interest ("general will" in Rousseau). Therefore, when failings are found in the contract, we renegotiate to change the terms, using methods such as elections and legislature. Locke theorized the right of rebellion in case of the contract leading to tyranny.
　　
　　Since civil rights come from agreeing to the contract, those who choose to violate their contractual obligations, such as by committing crimes, abdicate their rights, and the rest of society can be expected to protect itself against the actions of such outlaws. To be a member of society is to accept responsibility for following its rules, along with the threat of punishment for violating them. In this way, society works by "mutual coercion, mutually agreed upon" (Hardin 1968).
　　History
　　Classical thought
　　
　　Many have argued that Plato's dialog Crito expresses a Greek version of social contract theory. In this dialog, Socrates refuses to escape from jail to avoid being put to death. He argues that since he has willingly remained in Athens all of his life despite opportunities to go elsewhere, he has accepted the social contract i.e. the burden of the local laws, and he cannot violate these laws even when they are against his self-interest.
　　
　　Epicurus seems to have had a strong sense of social contract, with justice and law being rooted in mutual agreement and advantage, as evidenced by these lines, among others, from his Principal Doctrines:
　　
　　 31. Natural justice is a pledge of reciprocal benefit, to prevent one man from harming or being harmed by another. 32. Those animals which are incapable of making binding agreements with one another not to inflict nor suffer harm are without either justice or injustice; and likewise for those peoples who either could not or would not form binding agreements not to inflict nor suffer harm. 33. There never was such a thing as absolute justice, but only agreements made in mutual dealings among men in whatever places at various times providing against the infliction or suffering of harm. 34. Injustice is not an evil in itself, but only in consequence of the fear which is associated with the apprehension of being discovered by those appointed to punish such actions.
　　
　　Also see Epicurean ethics
　　Renaissance developments
　　
　　Quentin Skinner has argued that several critical modern innovations in contract theory are found in the writings from French Calvinists and Huguenots, whose work in turn was invoked by writers in the Low Countries who objected to their subjection to Spain and, later still, by Catholics in England. Among these, Francisco Suárez (1548–1617), from the School of Salamanca, might be considered as an early theorist of the social contract, theorizing natural law in an attempt to limit the divine right of absolute monarchy. All of these groups were led to articulate notions of popular sovereignty by means of a social covenant or contract: all of these arguments began with proto-“state of nature” arguments, to the effect that the basis of politics is that everyone is by nature free of subjection to any government.
　　
　　However, these arguments relied on a corporatist theory found in Roman Law, according to which "a populus" can exist as a distinct legal entity. Therefore these arguments held that a community of people can join a government because they have the capacity to exercise a single will and make decisions with a single voice in the absence of sovereign authority — a notion rejected by Hobbes and later contract theorists.
　　Philosophers
　　Hugo Grotius
　　
　　In the early 17th century, Grotius (1583–1645) introduced the modern idea of natural rights of individuals. Grotius says that we each have natural rights which we have in order to preserve ourselves. He uses this idea to try to establish a basis for moral consensus in the face of religious diversity and the rise of natural science and to find a minimal basis for a moral beginning for society, a kind of natural law that everyone could potentially accept. He goes so far as to say even if we were to concede what we cannot concede without the utmost wickedness, that there is no God, these laws would still hold. The idea was considered incendiary, since it suggests that power can ultimately go back to the individuals if the political society that they have set up forfeits the purpose for which it was originally established, which is to preserve themselves. In other words, the people i.e. the individual people, are sovereign. Grotius says that the people are sui juris - under their own jurisdiction. People have rights as human beings but there is a delineation of those rights because of what is possible for everyone to accept morally - everyone has to accept that each person is entitled to try to preserve themselves and therefore they shouldn't try to do harm to others or to interfere with them and they should punish any breach of someone else's rights that arises.
　　Thomas Hobbes's Leviathan (1651)
　　
　　The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes (1588–1679). According to Hobbes, the lives of individuals in the state of nature were "solitary, poor, nasty, brutish and short", a state where self-interest and the absence of rights and contracts prevented the 'social', or society. Life was 'anarchic' (without leadership/ the concept of sovereignty). Individuals in the state of nature were apolitical and asocial. This state of nature is followed by the social contract.
　　
　　The social contract was an 'occurrence' during which individuals came together and ceded some of their individual rights so that others would cede theirs (e.g. person A gives up his/her right to kill person B if person B does the same). This resulted in the establishment of society, and by extension, the state, a sovereign entity (like the individuals, now under its rule, used to be) which was to protect these new rights which were now to regulate societal interactions. Society was thus no longer anarchic.
　　
　　But the state system, which grew out of the social contract, was anarchic (without leadership). Just as the individuals in the state of nature had been sovereigns and thus guided by self-interest and the absence of rights, so states now acted in their self-interest in competition with each other. Just like the state of nature, states were thus bound to be in conflict because there was no sovereign over and above the state (i.e. more powerful) capable of imposing social-contract laws. Indeed, Hobbes' work helped to serve as a basis for the realism theories of international relations, advanced by E.H. Carr and Hans Morgenthau.
　　John Locke's Second Treatise of Government (1689)
　　
　　John Locke's conception of the social contract differed from Hobbes' in several ways, but retained the central notion that persons in a state of nature would willingly come together to form a state. Locke believed that individuals in a state of nature would have stronger moral limits on their action than accepted by Hobbes, but recognized that people would still live in fear of one another. Locke argued that individuals would agree to form a state that would provide a "neutral judge", and that could therefore protect the lives, liberty, and property of those who lived within it. While Hobbes argued for near-absolute authority, Locke argued that laws could only be legitimate if they sought to achieve the common good. Locke also believed that people will do the right thing as a group, and that all people have natural rights.
　　Jean-Jacques Rousseau's Du contrat social (1762)
　　
　　Jean-Jacques Rousseau (1712–1778), in his influential 1762 treatise The Social Contract, outlined a different version of social contract theory, based on popular sovereignty. Although Rousseau wrote that the British were perhaps at the time the freest people on earth, he did not approve of their representative government. Rousseau believed that liberty was possible only where there was direct rule by the people as a whole in lawmaking, where popular sovereignty was indivisible and inalienable. Citizens must, in at least some circumstances, be able to choose together the fundamental rules by which they would live, and be able to revise those rules on later occasions if they choose to do so - something the British people as a whole were unable to do.
　　
　　Rousseau's political theory has some points in common with Locke's individualism, but departs from it in his development of the "luminous conception" (which he credited to Diderot) of the general will. Rousseau argues a citizen can be an egoist and decide that his personal interest should override the collective interest. However, as part of a collective body, the individual citizen puts aside his egoism to create a "general will", which is popular sovereignty itself. Popular sovereignty (i.e., the rule of law), thus decides what is good for society as a whole, and the individual (including the administrative head of state, who could be a monarch) must bow to it, or be forced to bow to it:
　　
　　 [The social contract] can be reduced to the following terms: Each of us puts his person and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole.
　　
　　Rousseau's striking phrase that man must "be forced to be free" should be understood this way: since the indivisible and inalienable popular sovereignty decides what is good for the whole, then if an individual lapses back into his ordinary egoism and breaks the law, he will be forced to listen to what they decided as a member of the collectivity (i.e. as citizens). Thus, the law, inasmuch as it is voted by the people's representatives, is not a limitation of individual freedom, but its expression; and enforcement of law, including criminal law, is not a restriction on individual liberty, as the individual, as a citizen, explicitly agreed to be constrained if, as a private individual, he did not respect his own will as formulated in the general will. Because laws represent the restraints of civil freedom, they represent the leap made from humans in the state of nature into civil society. In this sense, the law is a civilizing force, and therefore Rousseau believed that the laws that govern a people helped to mold their character.
　　Pierre-Joseph Proudhon's individualist social contract (1851)
　　
　　While Rousseau's social contract is based on popular sovereignty and not on individual sovereignty, there are other theories espoused by individualists, libertarians and anarchists, which do not involve agreeing to anything more than negative rights and creates only a limited state, if any.
　　
　　Pierre-Joseph Proudhon (1809–1865) advocated a conception of social contract which didn't involve an individual surrendering sovereignty to others. According to him, the social contract was not between individuals and the state, but rather between individuals themselves refraining from coercing or governing each other, each one maintaining complete sovereignty upon oneself:
　　
　　 What really is the Social Contract? An agreement of the citizen with the government? No, that would mean but the continuation of [Rousseau’s] idea. The social contract is an agreement of man with man; an agreement from which must result what we call society. In this, the notion of commutative justice, first brought forward by the primitive fact of exchange, …is substituted for that of distributive justice … Translating these words, contract, commutative justice, which are the language of the law, into the language of business, and you have commerce, that is to say, in its highest significance, the act by which man and man declare themselves essentially producers, and abdicate all pretension to govern each other.
　　 —Pierre-Joseph Proudhon, General Idea of the Revolution in the Nineteenth Century (1851)
　　
　　John Rawls' Theory of Justice (1971)
　　
　　John Rawls (1921–2002) proposed a contractarian approach that has a decidedly Kantian flavour, in A Theory of Justice (1971), whereby rational people in a hypothetical "original position", setting aside their individual preferences and capacities under a "veil of ignorance", would agree to certain general principles of justice. This idea is also used as a game-theoretical formalization of the notion of fairness.
　　Philip Pettit's Republicanism (1997)
　　
　　Philip Pettit (b. 1945) has argued, in Republicanism: A Theory of Freedom and Government (1997), that the theory of social contract, classically based on the consent of the governed (as it is assumed that the contract is valid as long as the people consent to being governed by its representatives, who exercise sovereignty), should be modified, in order to avoid dispute. Instead of arguing that an explicit consent, which can always be manufactured, should justify the validity of social contract, Philip Pettit argues that the absence of an effective rebellion against the contract is the only legitimacy of it.
　　Criticism
　　David Hume
　　
　　An early critic of social contract theory was Rousseau's friend, the philosopher David Hume, who in 1742 published an essay "On Civil Liberty", in whose second part, entitled, "Of the Original Contract ", he stressed that the concept of a "social contract" was a convenient fiction:
　　
　　 AS no party, in the present age can well support itself without a philosophical or speculative system of principles annexed to its political or practical one; we accordingly find that each of the factions into which this nation is divided has reared up a fabric of the former kind, in order to protect and cover that scheme of actions which it pursues. . . . The one party [defenders of the absolute and divine right of kings, or Tories], by tracing up government to the DEITY, endeavor to render it so sacred and inviolate that it must be little less than sacrilege, however tyrannical it may become, to touch or invade it in the smallest article. The other party [the Whigs, or believers in constitutional monarchy], by founding government altogether on the consent of the PEOPLE suppose that there is a kind of original contract by which the subjects have tacitly reserved the power of resisting their sovereign, whenever they find themselves aggrieved by that authority with which they have for certain purposes voluntarily entrusted him. --David Hume, "On Civil Liberty" [II.XII.1]
　　
　　However, Hume did agree that, no matter how a government is founded, the consent of the governed is the only legitimate foundation on which a government can rest.
　　
　　 My intention here is not to exclude the consent of the people from being one just foundation of government where it has place. It is surely the best and most sacred of any. I only pretend that it has very seldom had place in any degree and never almost in its full extent. And that therefore some other foundation of government must also be admitted. --Ibid II.XII.20
　　
　　Logic of contracting
　　
　　According to the will theory of contract, which was dominant in the 19th century and still exerts a strong influence, a contract is not presumed valid unless all parties agree to it voluntarily, either tacitly or explicitly, without coercion. Lysander Spooner, a 19th century lawyer and staunch supporter of a right of contract between individuals, in his essay No Treason, argues that a supposed social contract cannot be used to justify governmental actions such as taxation, because government will initiate force against anyone who does not wish to enter into such a contract. As a result, he maintains that such an agreement is not voluntary and therefore cannot be considered a legitimate contract at all.
　　
　　Modern Anglo-American law, like European civil law, is based on a will theory of contract, according to which all terms of a contract are binding on the parties because they chose those terms for themselves. This was less true when Hobbes wrote Leviathan; then, more importance was attached to consideration, meaning a mutual exchange of benefits necessary to the formation of a valid contract, and most contracts had implicit terms that arose from the nature of the contractual relationship rather than from the choices made by the parties. Accordingly, it has been argued that social contract theory is more consistent with the contract law of the time of Hobbes and Locke than with the contract law of our time, and that features in the social contract which seem anomalous to us, such as the belief that we are bound by a contract formulated by our distant ancestors, would not have seemed as strange to Hobbes' contemporaries as they do to us.
　　Multiple contracts
　　
　　Legal scholar Randy Barnett has argued, that, while presence in the territory of a society may be necessary for consent, it is not consent to any rules the society might make regardless of their content. A second condition of consent is that the rules be consistent with underlying principles of justice and the protection of natural and social rights, and have procedures for effective protection of those rights (or liberties). This has also been discussed by O.A. Brownson, who argued that there are, in a sense, three "constitutions" involved: The first the constitution of nature that includes all of what the Founders called "natural law". The second would be the constitution of society, an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it does establish the third, a constitution of government. To consent, a necessary condition is that the rules be constitutional in that sense.
　　Tacit consent
　　
　　The theory of an implicit social contract holds that by remaining in the territory controlled by some government, people give consent to be governed. This consent is what gives legitimacy to the government. Philosopher Roderick Long argues that this is a case of question begging, because the argument has to presuppose its conclusion:
　　
　　 I think that the person who makes this argument is already assuming that the government has some legitimate jurisdiction over this territory. And then they say, well, now, anyone who is in the territory is therefore agreeing to the prevailing rules. But they’re assuming the very thing they're trying to prove – namely that this jurisdiction over the territory is legitimate. If it's not, then the government is just one more group of people living in this broad general geographical territory. But I've got my property, and exactly what their arrangements are I don't know, but here I am in my property and they don't own it – at least they haven't given me any argument that they do – and so, the fact that I am living in "this country" means I am living in a certain geographical region that they have certain pretensions over – but the question is whether those pretensions are legitimate. You can’t assume it as a means to proving it.
　　
　　Criticisms of natural rights
　　
　　Contractualism is based on the notion that rights are agreed upon in order to further our interests: each individual subject is accorded individual rights, which may or may not be inalienable, and form the basis of civil rights, as in the 1789 Declaration of the Rights of Man and of the Citizen. It must be underlined, however, as Hannah Arendt did on her book on imperialism, that the 1789 Declarations, in this agreeing with the social contract theory, bases the natural rights of the human-being on the civil rights of the citizen, instead of the reverse as the contractualist theory does. This criticism derives from a long tradition going back to St. Augustine of Hippo, who in The City of God (book) envisioned a unified Christian society presided over by a king who was responsible for the welfare of his subjects. Political Augustinianism with its insistence on divine sovereignty and on the two separate spheres of a heavenly and an earthly community, has indeed been regarded as incompatible with social contract theories. This raises the question of whether social contractarianism, as a central plank of liberal thought, is reconcilable with the Christian religion, and particularly with Catholicism and Catholic social teaching. The individualist and liberal approach has also been criticized since the 19th century by thinkers such as Marx, Nietzsche & Freud, and afterward by structuralist and post-structuralist thinkers, such as Lacan, Althusser, Foucault, Deleuze or Derrida