Social Contract Theory
Social Contract Theory
Social Contract Theory
Nyamaka Mr.
June 2011
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LL.B (Hons) - RUCO, LL.M Candidate (Economic Law) SAUT-2011, Tutorial Assistant SAUT currently assisting
in Constitutional law and the law of negotiable instruments
BARKER, E, (1960)Social Contract Essays by Locke, Hume, and Rousseau; Oxford University Press; USA; p.
viii
3
BURKE, E (1971)State Formation and Social Contract Theory: Rwenzuru and the Southern Sudan; A Paper
Delivered to the African Studies Association Conference; Denver;; p.8
4
Wikipedia; A Free Internet Encyclopedia; visit http://en.wikipedia.org/wiki/Social_Contract_theories
5
ZACK, N (2006)Philosophy and Disaster Homeland Security Affairs; Volume II; Issue 1; Homeland Security
Affairs is an online academic journal of the Centre for Homeland Defense and Security (CHDS); visit
http://www.hsaj.org/hsa
2
affairs should not just be a State, but rather, the formation of a type of society in which the
affairs of the State are integrated into affairs of ordinary citizens. 6
Kinds of Social Contract
We have explicit and implicit social contract of which an actual consent is required and on the
other hand, we have hypothetical social contract in which even though there is no actual
agreement to the social contract, you would agree, in some ideal circumstances. Locke thinks
there was an explicit agreement at the start of most states though David Hume7 objected this idea
of Locke by saying that origins of all or most actual governments is either usurpation or
conquest. In implicit social contract one agrees to the contract through actions rather than words.
Citizens implicitly consent through residence, acceptance of benefits and through political
participation.8
Historical Development of Social Contract
Social contract theory developed at the transition period from feudalism to capitalism where the
feudal system based on absolutism and the absolute right of kings was being fought. The theory
came as a means of explaining and justifying the existence of governments i.e. governments
should come from the will of the people. The theory was thus invented to challenge the system of
absolutism that existed in the monarchies. Later, the theory was reflected in the English
Revolution9, the French Revolution10 and the American Declaration of Independence.11.
WAMBALI, M. K. B, (1997) Democracy and Human Rights in Tanzania Mainland: The Bill of Rights in the
Context of Constitutional Developments and the History of Institutions of Governance PhD Thesis; University
of Warwick
7
David Hume (1711-1776), Scottish historian and philosopher, who influenced the development of skepticism and
empiricism, two schools of philosophy. Scottish historian and philosopher David Hume unsettled 18th-century
political thought with his argument that laws and leaders of government emerge in response to historical
developments, rather than in accordance with divine sovereignty, which was then the prevalent view. In Of the
Original Contract (1748) Hume outlines his views on how and why governments develop
8
Visit http://www.wsu.edu:8080/~dee/AMERICA/DECLAR.HTM
9
English Revolution also called the Puritan Revolution, general designation for the period in English history from
1640 to 1660. It began with the calling of the Long Parliament by King Charles I and proceeded through two civil
wars, the trial and execution of the king, the republican experiments of Oliver Cromwell, and, ultimately, the
restoration of King Charles II.
10
French Revolution, major transformation of the society and political system of France, lasting from 1789 to 1799.
During the course of the Revolution, France was temporarily transformed from an absolute monarchy, where the
king monopolized power, to a republic of theoretically free and equal citizens
11
Declaration of Independence, document in American history used by the 13 British North American colonies to
proclaim their independence from Great Britain. The Declaration of Independence was adopted in final form on July
4, 1776. It can be divided into three parts: a statement of principle concerning the rights of man and the legitimacy
of revolution, a list of specific grievances against Englands King George III, and a formal claim of independence
12
13
14
FRIEDMANN, W, Legal Theory, Universal Law Publishing CO. PVT. LTD, India, 1999
ibid
MIHYO, P. B, (1977),The Development of Legal Philosophy, East African Literature Bereau, at pp 50
4
because the state originated in a so called social contract whereby individuals accepted a
common superior power for protection and made possible certain human desires.15
Social Contract Theory of John Locke
John Locke on the other hand accepted much of Hobbes social contract theory but argued that
sovereignty resided in the people for whom governments were trustees and that such government
could be legitimately overthrown if they failed to discharge their functions to the people. He
attempted to erect effective safeguards against violations of natural law by the government.
Locke said that the sovereign did not take all rights; the principal rights remained with the
people. Lockes social contract was devoted to sovereignty and law. Sovereignty derived from
the peoples will. This will remained with the people. He argued that sovereignty did not reside
in the state but with the people, and that the state was supreme, but only if it was bound by civil
and natural law.16
Locke believed in the governed as the basis of sovereignty and the state as the guarantor of
individuals liberty. To Locke, under social contract power was surrendered not to the sovereign
but to the community. He said there and there only was a political society where everyone in the
society had quitted his natural power, resigned it up into the hands of the community. John
Locke used the phrase there and there only to emphasize the importance of the WILL of the
people in forming a political society. Thus, every member of the community surrendered his
natural power with free will explicitly or implicitly and resigned it into the hands of the
community in exchange for the discharge of functions to the people, hence a political society
becomes with power to preserve property and punish offences. However, the power cannot be
more than that the people had in a state of nature before they entered into a society and gave it to
the community for nobody can give more than what he has. The term community as is used by
John Locke above signifies the government of the people by the people for the people, thus
community rights should prevail over individual rights and the rights are surrendered into
community because the sovereign is the people and only comes from the people. Thus, hands of
the community mean the governor who is governing by the WILL of the people.
15
KATZNELSON, I, ( 2006) Political Theory, Microsoft (R) Student 2007 [DVD], Redmond WA: Microsoft
corp
16
John Locke, Microsoft Student 2007[DVD], op cit
5
and hence all other legal rules in the country derive their authority from it. All the laws, by-laws,
rules and regulations find their legitimacy from the Constitution. In this sense, the legitimacy of
State policy and sovereign existence emanates from the Constitution.19
Being the supreme law of the land, the Constitution of a country has also been regarded as the
social contract. It is the contract between the rulers and the ruled and therefore it is more than
just a document as it embodies the wishes and aspirations of the country.20 As the Constitution of
a country is a document that signifies the social contract between the rulers and the ruled, it must
be voluntarily agreed upon by the countrys people for their common good and well-being.21 An
ideal Constitution of a nation implies prior participation of the people in constitution making and
therefore it should be a document that bears all the blessings of the people.22
The former President of the United Republic of Tanzania Benjamin W. Mkapa in his speeches on
the rule of law and good governance in Tanzania stressed on the will of the people to be ruled
and ruler to respect that will of the people. To him, this agreement differentiates human
communities from animal communities.
Na sheria maana ni mkusanyiko wa kanuni na taratibu halali kwa lengo la kusimamia
mahusiano kati ya mtu na mtu, mtu na jamii, mtu na serikali, jamii na serikali n.k .na
uhalali wa sheria unatokana na ukweli kuwa katika nchi ya demokrasia kama ilivyo yetu,
wanaotunga sheria ni wenzetu tuliowachagua kwa hiari yetu watuwakilishe23
That may be freely translated into English to mean:The lawis the bundle of principles and customs regulating the relationship between
individuals, an individual and the society, an individual and the government, and between the
society and the government etc. . And in democratic countries like Tanzania, the basis for the
legitimacy of the law is the WILL of the people through parliamentary representatives.
19
However, it is contended that most constitutions of African States; and especially former British
colonies lack legitimacy, and are highly contested because, despite their facilitation of smooth
transitions to administrations, they did not involve the people.24
In a modern sense, a constitution may be defined to mean a product of national consensus
forming the basis of the organisation of the people in their state. People decide on the basis for
their co-existence which is then reflected in the constitution, based on the relationship of the state
and the citizens on one side, and to communities in the other side.
The constitution must come from the people, the people are the authority, and thus, the
constitution is the people themselves. The term authority may be ascribed into political
legitimacy and legal authority. Political legitimacy means that a constitution must be accepted
and respected by the people while legal authority means that the constitution is deriving from
effective legal process and organs, thus, a national consensus.
Social Contract Parameters in the Constitution of the United Republic of Tanzania, 1977
Sovereignty of the People; in democratic countries like Tanzania sovereignty resides in the
people. In other words the source of power is the people and that the state derives its authorities
from the people.25 In Tanzania, like in many other developing countries, the right to participate
in national affairs is easily said than implemented26. Sovereignty is imposed upon the people as
they have the right to vote27 for the leaders of their choice. However, the right to vote in
Tanzania is not enforceable28 and free will in voting may be influenced by some factors like
bribery.
Also people are constitutionally given the freedom to participate in public affairs.29 This may be
done from the village level to state level. At the village level there is the village assembly and at
state level people may participate through members of parliament from their constituencies.
24
See MUKANGARA, R. Daudi, (1999), Forms and Reforms of Constitution Making With Reference to Tanzania,
UTAFITI [New Series ] Special Issue, Vol. 4, 1998-2001
25
This reflects the wordings of Article 8 (1) (a) of the Constitution of the United Republic of Tanzania, 1977
26
Mongella, L. M, (2007), Revisiting the Social Contract Theory: Its Relevance and Applicability in Tanzania,
LL.M Dissertation, UDSM
27
As article 5(1) of our constitution, op cit
28
See Article 7(2) of our constitution, ibid
29
See article 21, of our constitution, ibid
8
Peoples Rights and Duties; chapter one part III of the Constitution of the United Republic of
Tanzania, 1977 provides for basic rights and duties to citizens including the right to equality, the
right to life and the right to freedom of conscience. The citizens are duty bound to observe and
abide by the constitution and the laws of the United Republic of Tanzania.30 These were also
stressed by John Locke in his social contract theory.
State Obligations; the state organs of the executive, the legislature, and the judicature were
created to serve the people of the United Republic of Tanzania. They hold their respective power
in trust for the people. As trustees, the powers of these organs are limited by the constitutional
provisions, principles and laws flowing therefrom. The primary objective of the government is
the welfare of the people and it shall be accountable to the people.31
The authority of the government of the United Republic of Tanzania derives from and is
concerned with the application and upholding of the Constitution of the United Republic of
Tanzania.32 The constitution is the WILL of the people, and every person is entitled to the right
to ensure protection of the constitution33, protecting the constitution is impliedly protecting the
people.
The Constitution is the pactum unionis of Tanzanians. In its article 28 (1), the Constitution of the
United Republic of Tanzania enjoins every citizen of Tanzania to protect, preserve and maintain
the independence, sovereignty, territory and unity of Tanzania as a nation.34 This reflects pactum
subjectionis concept of John Locke in his social contract theory.
Social Contract in the Modern World
Political power derived from social contract entails such power coming from the people and not
from above, whether from divine law or the grace of God. Thus, social contract theory of John
Locke is a forerunner of democratic theory i.e. the government of the people, by the people and
for the people. Thus, the modern democratic governments adhering to free and fair election
principles have their basis on social contract theory.
30
Parliamentary democracy existing in the modern world today is mainly influenced by John
Lockes idealism. His ideas gave theoretical form to the reaction against absolutism and the
preparation of parliamentary democracy. His greatest effect was upon the American and French
revolutions.
John Lockes doctrines of liberty and equality have exercised a strong influence upon the bill of
rights in modern constitutions in many countries including Tanzania. Liberty and equality of an
individual are highly respected and thus protected by the governments. And sovereignty resides
in the people as per John Lockes ideas.
Limitations of the Social Contract Theory
The parameters of social contract theory of John Locke in some instances fail to hold water like
in cases where some states were formed through usurpation or conquest. In such cases there is no
free will to be ruled and the obedience to the government is mandatory. For example, the recent
cases in Kenya and Zimbabwe, there were formed coalition governments of which were not
based on the will of the people but the will of the rulers. Moreover, in some jurisdictions like
Tanzania rulers come into power by simple majority of the votes, but how will the WILL of the
remained be protected? Will these persons who voted against the winner be part of the said social
contract?
It is expressly provided in the Constitution of the United Republic of Tanzania, 1977 that: the government and all its agencies provide equal opportunities to all citizens35 and that no
person shall be discriminated 36 thus it is a simple majority rule-minority rights system
whereby the Tanzanians have agreed in their constitution to form the government by simple
majority votes but the government is for all citizens and the objective of this government is to
protect the welfare of the PEOPLE37 and not the simple majority voters. But in some instances
members of a political party forming the government may be privileged because the rulers know
that these are the ones who will give them power in future time.
Since the constitution of a country signifies social contract between the rulers and the ruled, it
must be voluntarily agreed upon by the countrys people for their common good and well35
10
38
BIBLIOGRAPHY
BOOKS
Barker, Sir E. (1960), Social Contract Essays by Locke, Hume, and Rousseau; Oxford
University Press; USA
Edgar. B, (2006), The Philosophy and Method of the Law, New Delhi, Universal Law
Publishing CO. Pvt. Ltd
Friedmann, W. (1999), Legal Theory, New Delhi, Universal Law Publishing CO. PVT. LTD.
Issa G. Shivji.et al, (2004), Constitutional and Legal System of Tanzania, Dar es Salaam,
Mkuki na Nyota
M.D.A FREEMAN, (2001), Lloyds Introduction to Jurisprudence, London, Sweet and
Maxwell Ltd
Paschal B. Mihyo, (1977), The Development of Legal Philosophy, Nairobi, East African
Literature Bureau
Peter, C. M. & Juma, I. H. (1998), Fundamental Rights and Freedoms in Tanzania (eds), Dar
es Salaam, Mkuki na Nyota Publishers
Peter, C. M. & Kijo-Bisimba, H. (2007), Law and Justice in Tanzania: Quarter a Century of
the Court of Appeal of Tanzania, Dar es Salaam, Mkuki na Nyota Publishers
Peter, C. M. (1997), Human Rights in Tanzania: Selected Cases and Materials, Germany.
Rudiger Koppe Verlag Koln
12
R. Pound, (2006), An Introduction to the Philosophy of Law, Yale University Press, Indian
Reprint
V.D. Mahajan, (2007), Jurisprudence and Legal Theory, Eastern Book Company, India
CHAPTER OF BOOKS
Juma, H. I.; (1996), Constitutional-Making in Tanzania: The Case for a National
Conference In: Oloka-Onyango, J., et al (eds); Law and the Struggle for
Democracy In East Africa, Nairobi, Claripress
Benjamin W. Mkapa, (2003), Utawala wa Sheria na Haki ya Kuishi Uwazi na Ukweli, Dar es
Salaam, Mkuki na Nyota
Okoth-Ogendo, W. H. O.; (1991), Constitutions without Constitutionalism: Reflections on an
African Political Paradox. In: Shivji, I. G. (ed); State and Constitutionalism: An
African Debate on Democracy, Human Rights and Constitutionalism; Series No. 1;
Southern African Political Economic Series (SAPES) Trust; Harare-Zimbabwe
PAPERS/REPORT
Burke, E.; (3rd 6th November 1971), State Formation and Social Contract Theory:
Rwenzuru and the Southern Sudan A Paper Delivered to the African Studies
Association Conference; Denver
Katznelson, Ira, (2006) Political Theory, Microsoft (R) Student 2007 [DVD], Redmond WA:
Microsoft corp
Peter, C. M.; (1999), Constitutional Making Process in Tanzania: The Role of Civil
Organizations, A Case Study Prepared for the Civil Society and Governance in
East Africa Project (Tanzania Side)
DISSERTATIONS/ THESIS
Wambali, M. K. B.; (1997), Democracy and Human Rights in Tanzania Mainland: The Bill
of Rights in the Context of Constitutional Developments and the History of
Institutions of Governance PhD Thesis; University of Warwick
Mongella, L. M, (2007), Revising the Social Contract Theory: Its Relevance and
Applicability in Tanzania, LL.M Dissertation, University of Dar es Salaam
13
WEBSITES
Zack, N Philosophy and Disaster Homeland Security Affairs Volume II Issue 1 2006 Visit
http://www.hsaj.org/hsa retrieved on 24th November, 2009
Visit http://www.wsu.edu:8080/~dee/AMERICA/DECLAR.HTM retrieved on 30th November,
2009
Visit http://www.hsaj.org/hsa retrieved on 30th November, 2009
Visit
http://en.wikipedia.org/wiki/Social_Contract_theories
Encyclopedia
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Wikipedia;
Free
Internet