When people say that law starts with the state,
they forget that the state is a relatively
late development in human history.
And so when one refers to a state of nature,
you're referring to individuals in which there
is no central authority.
The situation in the state of nature is one
in which you have very elaborate rights and
duties, but no effective means for enforcement.
The natural lawyers say that in a state of
nature, each person has a natural liberty
to acquire property and to enter into voluntary
transactions.
Early on they're not enforced by the states,
but they're enforced by families and by clans
whose common genetical origin means that there's
enough self-interest and shared interest amongst
these individuals that these rules prove stable.
But in many cases what happens is the balance
of power starts to become awkward and individual
lives and property are threatened.
But when it comes to a clash between two clans,
often what happens is that war results and
one of them may be conquered or destroyed.
So, the great question is how you organize
a transition, from the state of nature to
a state, where the state is strong enough
to protect the entitlements in question, but
not so strong, uh, to destroy them.
In dealing with the theory of moving out of
the state of nature into society, people often
refer to the notion of social contract.
To understand it, you have to break it down
into two parts.
The first part is what is a contract, and
generally speaking you have a contract here
amongst multiple individuals.
And what you want to do if it's a contract
is to make sure that each person who enters
into this agreement is better off than they
were in a state of nature.
But these are social contracts precisely because
the transactional barriers are so high, that
voluntary agreements cannot achieve the movement
from the state of nature into a political
state.
And what the world social means is that we
impose this particular contact on all individuals.
Each individual has to renounce the use of
force against everybody else.
Each individual has to contribute some set
of money, sum of money to the central power.
The government then tries to use the power
that it receives and use the money that it
gets in order to stabilize, uh, the natural right
relationships amongst other individuals.
Every individual who is subject to the force
of the state is made better off by virtue
of this particular operation, because of the
power over restrictions impose upon the actions
of others.
And it's this movement from a lower to a higher
state of social utility which makes the social
contract justified.
