Bill of Rights and the Criminal Justice System: Social Contract Theory

Social Contract Theory

The social contract model is based on the underlying premise that society, in pursuit of the protection of people's lives and property, enters into a compact agreement with the government - where the latter guarantees the society protection, and the society in turn pledge to live in peace and harmony (Dooley & Paten, 2014). John Locke and Thomas Hobbes, the two main proponents of the social contract model, agree on this premise but differ significantly in regard to the principles under which the contract ought to operate (Dooley & Paten, 2014).

Hobbes' versus Locke's View

Through his political work Leviathan, Hobbes states that the government and the society both exist within the confines of the stipulated contractual agreement, but the former is the higher one of the two parties, and enjoys absolute sovereignty to use its power and political right to ensure that general order prevails in the society. In Hobbes' view, therefore, the society can only follow the government's regulations/conditions in goodwill and full compliance. Towards this end, as long as the government is able to maintain general order, the society reserves no right to replace or overthrow it, even if it (the government) has proven to be weak in other areas of governance.

Locke's view, on the other hand, expresses that the social contract binds both parties, but i) the society is only bound to follow the authority's regulations as long as the authority sticks to the basic confines of the agreement; and ii) the society reserves the right to replace or overthrow the government if it repeatedly violates the contract's basic guidelines. Although Locke's view has been widely-accepted, it has one major drawback; it is difficult to give a definite meaning of what exactly constitutes a contractual violation.

Principles of Locke's Theory

Freedom: Locke's aspect of freedom is embedded in his concept of the State of Nature -- a state of preservation, mutual assistance, goodwill, and peace, in which all had the right to enjoy the pleasures of nature (Elahi, 2014). Towards this end, mankind had the liberty to conduct his life in any way he deemed fit, free from interference. The state of nature had no ruling authority or law-enforcement agencies to ensure that law and order were maintained; people were free to pursue their endeavors, but still there was an element of morality.

The Principle of Fairness: Locke identifies the protection of society's property as the core function of government. Private property is governed by the Law of Nature which puts limits on the amount of property one can own, and prevents some from owning too much at the expense of others (Elahi, 2014). In this regard, despite the fact that nature endows humankind with an array of resources for his own subsistence use, no one is allowed to own more than their fair share. Individuals act ethically at all times, ensuring that they do not interfere with the rights and privileges of others in the enjoyment of their own rights.

Justice: In Locke's view, property in the State of Nature was insecure because of the absence of i) natural power for the enforcement of natural law; ii) an impartial judge; and iii) established law (Elahi, 2014). Locke saw the need to create these through the creation of a government and political society. The individual would then shift the contractual rights they reserved under the State of Nature to the governing authority, and retain those rights that are considered natural and inalienable; that is, the right to liberty and estate, and the right to life (Elahi, 2014). Having been given the power to enforce these rights through the society-government contractual relationship, the ruling authority is bound to protect its citizens and punish law transgressors.

Locke's Principles and the Bill of Rights

As already mentioned, the right to liberty, property-ownership, and life are the fundamental natural rights. The U.S. Constitution Bill of Rights expands these into the Right to travel over public roadways, the right to keep/bear arms, the right to assemble peaceably, and the right to speech and publication (Constitution Society, 2007). These rights are inalienable -- they can neither be denied nor taken away. Moreover, a person can neither delegate nor transfer the same to another. The exercise of such natural rights can only be restricted if it is found to be in conflict with others' enjoyment of their natural rights, and even so, such restriction should only be to the "minimum degree needed to resolve such conflict" (Constitution Society, 2007, n.pag). Towards this end, no constitutional provision should grant any level of government the authority to take away the same, even through the proper process of amendment (Constitution Society, 2007). This is because the Constitution only recognizes, but does not establish these rights as they are established by the Law of Nature.

However, other rights such as the right to vote and the right of due process are contractual, and can, hence, be taken away through a Constitutional process (Constitution Society, 2014).