Community and the Law: Social Contract Theory

The notion of Community is inseparable from the notion of law. Social Contract Theory, which dates back at least as far as Socrates, tells us that individuals have certain natural rights, such as the right to life, liberty and the pursuit of happiness, or as John put it, life liberty and the pursuit of property. Nonetheless, men and women choose to give up certain right and live together for protection. Submission to a common authority in exchange for protection is the essence of the social contract.

Socrates’ argument in Crito is bypassed here since Socrates focused on why he should remain in prison to further the social contract. Instead, we move forward to Thomas Hobbs (1588-1679). Hobbs argued that people are naturally self-interested and yet rational. Because they are rational, they choose to submit to a sovereign to maintain civil society which is consistent with their self-interest. John Locke (1632-1704) took the Social Contract argument further defending the right to private property. Allegedly, Locke believed there were only a few restrictions on the accumulation of private property. Among them were: “(1) one may only appropriate as much as one can use before it spoils (Two Treatises 2.31), (2) one must leave “enough and as good” for others (the sufficiency restriction) (2.27), and (3) one may (supposedly) only appropriate property through one’s own labor (2.27).” See Locke’s Political Philosophy, Stanford Encyclopedia of Philosophy.

Notions of private property are as old as the Bible is as old as the Bible (see Exodus 22: 1-3 – Whoever steals an ox or a sheep and slaughters it or sells it must pay back five head of cattle for the ox and four sheep for the sheep), and the Social Contract’s tug of war between the rights of individuals (liberty and private property rights) and the government, plays out in the U.S. Constitution. Specifically, the Fifth Amendment, mirroring Jefferson’s language in the Declaration of Independence, states: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”(Emphasis added).

In Preseault v. ICC, 494 U.S. 1 (1990), a takings case, the Supreme Court held “[t]he Fifth Amendment provides in relevant part that “private property [shall not] be taken for public use, without just compensation.” The Amendment “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314 (1987).It is designed “not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id., at 315 (emphasis in original). Furthermore, the Fifth Amendment does not require that just compensation be paid in advance of or even contemporaneously with the taking. See Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985). All that is required is the existence of a “‘reasonable, certain and adequate provision for obtaining compensation'” at the time of the taking. Regional Rail Reorganization Act Cases, 419 U.S. 102, 124-125 (1974) (quoting Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659 (1890)). “If the government has provided an adequate process for obtaining compensation, and if resort to that process ‘yield[s] just compensation,’ then the property owner ‘has no claim against the Government’ for a taking.” Williamson County Regional Planning Comm’n, supra, at 194-195 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 1018, n. 21 (1984))”.

So, why discuss Social Contract Theory on a website about Elder Law and Special Needs Law? For several reasons. First, why do we need laws? Why have them at all? Well, … laws are like fences and, as Robert Frost said, “Good fences make good neighbors.” Second, our goal is to weave together practical life experience and needs (e.g., by mentioning events, resources and tools to help our users). Once done, we will attempt to show how laws are applied to the facts and how they help meet needs. Third, it’s important to remember that Elder Law and Special Needs Law do not exist in a vacuum. They are part of a much larger legal framework, which includes Contract Law, Property Law, and Tort Law, as well as tax law, the law of agency, banking law, and other legal specialties.

As this website grows, we will build pages to address other legal topics that provide background, or that must be considered when planning for elders, individuals with special needs and their caregivers. Meanwhile, if you have questions, please contact us at

Other Topics:

Property Law (Coming soon)

Contract Law (Coming soon)

Tort (Injury) Law


Social Contract Theory, Internet Encyclopedia of Philosophy

Locke’s Political Philosophy, Stanford Encyclopedia of Philosophy

Natural Rights and Legal Rights, Wikipedia

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