INTRODUCTORY NOTE
Our task has been to explore the John Locke’s Social Contract
theory. In doing so however, it has been observed to be prudent, albeit in a
nutshell, to draw attention to the meaning of the concept ‘Social contract’ and
its genesis, a thing which will as well compel us to go into an overview of the
theorization of the some other philosophers like Grotius and Hobes,
philosophers upon whose inputs the Locke’s theorization found a bedrock. Further,
the discussion will examine other related issues like legitimacy of ruling,
legitimacy of overthrowing a government and validity of Social Contract theory
in a modern world.
MEANING OF SOCIAL
CONTACT THEORY
Social contract theory in particular is a theory about how
political authority can arise and get acceptance in a Society, it details an
agreement between the government of a nation and its people, in which the people
agree to give up some liberties (these vary depending on the philosopher)
in return for security, protection of rights, or some good stuff
similar to that.
So, it suffices to say, at this juncture that social contract is
an implied agreement by which people form nations and maintain
a social order
GENESIS OF SOCIAL
CONTACT THEORY
The social contract theory, as per
philosophers, can be traced back from earliest history where man lived in a
"state of nature" where no government existed. Each man was only as
secure as his own power and mental awareness could make him[1]
However, in due course of time and
because of problems associated with the form of life above seen, men agreed
with one another to make a state by contract, within a given area each
surrendering personal freedom as necessary to promote the safety and well being
of all. By this contract the members created a government. The social contract
gives rights and responsibilities to both the citizenry and the government[2],
a given authority to enforce laws and agreements[3]
So, generally the theory has been people’s
efforts to master their environment.
Hugo Grotius 1583-1645 Dutch Jurist, Internally S.C for
justification of the absolute duty of obedience of the people to the govt.
Internationally create a basis for legally binding & stable
relations among states.
Thomas Hobes’[4] political philosophy, Hobes had this to say “state
originated in a so-called social contract, whereby individuals accept a common
superior power to protect themselves from their own brutish instincts and to
make possible the satisfaction of certain human desires’[5]. This government is to be
obeyed even if it is oppressive because the alternative is even worse.
John Lockey[6], however, whose philosophy
is our main focus in this discussion commented further that Sovereignty resided
in the people for whom governments were trustees and that such governments
could be legitimately overthrown if they failed to discharge their functions to
the people[7].
Not only is it not a written contract, it is not even an explicit
verbal agreement or promise to obey the law
They each provide a theory for the nature of humanity, which influences their
beliefs about the ideal formation of society John Locke,
Thomas Hobbes, and Jean-Jacques Rousseau
They potray that in early life there was
no government and people were free to do whatever they want.
A POINT OF DIVERGENCE BTN
LOCKEY AND HOBES
Thomas Hobbes believed that people
were inherently
evil by nature and in the state of nature, according to Hobbes; life
was "nasty,
brutish, and short."
Because of this, people would run around wildly, killing
other people out of self-interest, stealing their property. And therefore the best
way to deal with this was to have a totalitarian ruler who ruled by force,
as force was the only way to keep humans' evil tendencies in check. The social contract
would form when the ruler
used force to create the government, and it would never end. So, this is to say
Thomas Hobbes
believed in absolutism
John Locke
believed that humans were by nature rational beings. In the state of nature, things
would function fairly smoothly, but there would inevitably be conflict due to a
limited
number of resources and lack of accessibility. The way to deal with
this, believed Locke, was to form a government. The government would protect
the inalienable rights of human beings, known as natural rights. According to Locke, these
natural rights consisted of life,
liberty,
and property.
Although people would have to give up some of their extreme liberties in order
not to infringe
upon the rights of others, people would have a large amount of freedom in
Locke's ideal government. So this implies that Locke
believed in democratic government, a thing that even Jean-Jacques Rousseau
supported.
Validity of Lockeys
Social Contract Theory in Modern World
Lockes Social Contract theory became the most influential
political theory in the world. Its philosophy spread all over the world
influencing the creation of many new Constitutions and new governments and also
giving them a shape
To date, the modern democratic governments presupposes adherence
to the Constitutional Principles, concept that has its history from Locke’s
Social Contract Philosophy.
Based on Locke’s reasoning, Thomas Jefferson and other American
thinkers for example wrote the Declaration of Independence and the Bill of
Rights[8] In which they have all
argued that certain rights especially related to human preservation or protection
of life are inherent.
These philosophical
arguments found practical application in the Bourgeois constitutions of the
18th and 19th centuries. The Social
contract (later the constitution) had to protect these fundamental rights and
positive law could not, without qualification, contradict such rights[9]
Locke exercised a profound influence on philosophy and politics,
in particular on liberalism. Most modern libertarians
claim him as an influence. He was a strong influence on Voltaire,
while his arguments concerning liberty and the social contract
later influenced the written works of Alexander Hamilton, James Madison,
Thomas Jefferson,
and other Founding Fathers of the United States.
In addition, Locke's views influenced the American and French Revolutions
We hold these truths to
be self-evident, that all men are created equal, that they are endowed by the
creator with certain unalienable rights that among these are life, liberty and
the pursuit of Happiness. That to secure
these rights, Governments are instituted among men, deriving their put powers
from the consent of the governed, That
whenever any form ends, it is the right of the people to acted or to abolish
it, and to institute new government, laying its foundation on such principles
and organising its powers in such form, as to them shall seem most likely to
effect their safety and happiness. [d'Entreves, 2 Ed, p/63][10]
1.
On the issue of
sovereignty of people
The modern democratic governments presuppose adherence to the constitutional
principles, concept that one can not deny that has its history from Lockes
Social Contract theory. The sovereignty being vested on the people being led,
this is to say the source of authority of government is the people[11].
Previously, the practice of direct democracy was possible because
of a low number of people in the society so all the people could gather in a
meeting and discuss issues concerning them, however, because of tremendous population
growth the modern representative democracy has been adopted with a op that
those representing others in meetings will contribute exactly what the other
members of the society wants
The same has been even enshrined in some constitution example
article 8(1) a of the URT and article 9(2) a of the Const of ZNZ
This issue has even been deliberated upon by by courts of Laws
2.
On rights to life and liberty
In connection to this, Locke asserted that men in establishing a
political authority although they
surrender their rights but they still retain those natural rights of
life, liberty and property[12]. The modern democratic
governments have continued maintaining this legacy by guaranteeing these natural
rights to people. This is clearly visible in the Constitution of the United
Republic of Tanzania which provides ‘Kila mtu
anayo haki ya kuishi…’[13], and ‘Kila mtu anayo haki ya kuwa huru na kuishi kama mtu huru[14]’. The Constitutions of
USA[15] also provides that natural
rights of a person can not be interfered not even by state unless there are
justified reasons and for the public interest and with adequate compensation. The
international instruments as well provide for these rights, examples in case
include the universal declaration of human rights of 1948 which provide ‘everyone
has the right to life and liberty[16]
These rights being the most important rights of all persons rights,
even the courts of law have not lagged behind in giving statutory
interpretations which clearly or impliedly aim at protecting them, once Justice
Mwalusanya in the cause of hearing a murder case whose punishment is death
penalty he commented ‘death penalty is
not a punishment which is prescribed by a lawful law’[17] this is to say’ it is
Unconstitutional law’ (emphasis
mine) however this decision was later on overruled by the Court of appeal[18].
Also, the Supreme Court of……….once declared segregation of
equality unconstitutional in the case of Brown Versus Board of education[19].
In relation to this also the English Courts in matters not covered
by statutes, have relied on natural law which is the basis of lockes philosophy
a special reference can be made on Somersells case[20] in which the court had this to say ‘slavery
is an institution so odious to natural law that the English Court would not
countenance it’
On separation of power
The execution and the enforcement of the laws passed by the
legislators is placed by Locke in the hands of the executive branch of the
government,[21]
further Locke advocated that the legislators and the executive powers must be
in distinct hands[22]
3.
Checks and Balance
Locke believed that the separation of the legislative from the
executive powers of government will accomplish a great deal in the way of
preventing governmental tyranny and arbitrariness. He openly advocated
governmental Checks and balance[23]
A typical mode of the Lockes Social contract theory, though in a
bit advanced stage but basically the concept is the same can be viewed in the modern democratic Countries I which the
issue of checks and balance is greatly taken care of.
Example in the case includes the framing of various Constitution including that of USA which in addressing
the problem of avoiding unbalanced or excessive concentrations of power in
government adopted a constitution in which legislative, executive, and judicial
powers are largely divided among separate branches, with each having some power
to check the abuses of the others.[24]
Also the constitution of the United Republic of Tanzania under
article …………the issue of separation of power is well taken care of.
4.
Legitimacy of Overthrowing a Government / Revolution
Locke believed that revolution is not only a right but an obligation
in some circumstances. These ideas came to have profound influence on the
constitution of USA and its declaration of independence[25]
Locke believed that at the point when
the government failed to uphold the natural rights of its citizens, the
citizens had an obligation to overthrow the government and establish a new,
just one.
The case of madzimbamto s relevant here
- Legitimacy of Ruling
The
idea of the social contract holds that political society rests ultimately on a
voluntary agreement[26] between the ruler and the ruled. According to Lockes’ Social
contract theory, therefore, consent is the basis of government. It is because
people have agreed to be ruled that governments are entitled to rule. This
concept found a place in the current democratic governments in which it is
urged that governments must be put in power by the ballot paper to signify the
mass support of the government and as a result the
- Theory of value and the right to property
He argues that property is a natural
right and it is derived from labour. He believed that ownership of property
is created by the application of labour.
In addition, property precedes government and government cannot "dispose
of the estates of the subjects arbitrarily (Wikipedia)
Ami versus Safai
CRITICS TO LOCKES PHILOSOPHY
Though He averted that in the state of nature all men were free, equal
and independent. There was perfect
freedom. But weaknesses which are inherent in this state of nature: - that is
(a) There is lack of
established law to know what is bad or good generally, there is lack of law to
settle disputes. Although reason can
teach natural law some are ignorant of it.
(b) There is no
impartial judge who has the authority to determine differences as provided by
established law. Everyone is a judge of
his own cause as such there can he no fair settlement of disputes.
(c) There
is no power to back a sentence when a right has to be enforced
The sovereign has to be created thereby
with only limited powers and the and thereby individual retains all their basic
rights which are inalienable
Conclusion
Despite it being not
very effective, Social contract theory helps us understand the
origins of political power as well as its legitimacy. It further give us a
proper way of establishing political organization, how it ought be structures
and the proper administration for the betterment of the whole society.
Therefore, This is to say Social Contract Theory was crucial and infact still
very important in the modern world, though some aspects of it need be improved
and modified to suite the challenges of the cotemporary world.
[4] an English philosopher
who lived between 5th April 1588 and 4th December 1679, his famous book Leviathan (1651) established the
foundation for most of Western political philosophy
[5] Microsoft ® Encarta ® 2008. © 1993-2007
Microsoft Corporation.
[6] a 17th-century English
philosopher who helped articulate the modern version of social contract theory
[7] REF FOOT 2
[8] Microsoft ® Encarta ® 2008. © 1993-2007 Microsoft Corporation.
[9] Dr Tenga draft notice
[10] The American Declaration of
Independence of 1776, is of the same tenor.
Its opening paragraph recount
[11] The constitutional and legal
systems of TZ pg 41
[12]
Jurisprudence revised edn
pg 45
[13] Article 14
[14] Article 15 (1)
[15] Lectures in jurisprudence pp 111
[16] Article 3, UDHR 1948
[17]
Mbushuu@Dominic Mnyaroge and another, HC of Tanzania at Dodoma
[18]
Mbushuu@Dominic Mnyaroge and Kalai Sangula versus Republic
[19] 347 US 483 (1954)
[20]
(1972) 20 st T 1
[21]
Jurisprudence revised edn pg 47
[22]
Jurisprudence revised edn pg 47
[23]
Wikipedia
[25] Wikipedia
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