Social Contracts

Part 1: Introduction: All societies have some sort of social contract

All orderly and unified societies and countries have a ‘social contract.’ This can be

understood as an agreement of covenant between citizens and their motherland. Or

fatherland.

This contract may be spelled out in key laws, a formal constitution or a code of

expected behaviour. However, it is often an informal understanding about two-way

obligations and rights.

A social contract, therefore, sums up the obligations of individuals and groups to work

with each other for the good of a parent. Whether that parent is a clan, a regional

grouping, a city-state or an identified country is of little importance. What is important

is the difference it makes to survival, order and unity of societies.

All good agreements are two-way and fair in their obligations. They sum up the

obligations of a parent-clan, a parent-country or a parent-state to provide services like

safety and access to justice. And they sum up the obligations of communities and their

children-citizens/clan-members to know and meet them.

What is the value of using the term ‘social contract?’

The value of using a phrase like ‘social contract’ is that it can focus attention on what is

needed to make them work. And why their demands, their terms, can change. Or need

to change. If individuals need to band together to protect each other or to develop

fully, one of the functions of social contracts is to spell out the exact nature of

obligations and expectations. This includes where and when action is required and

what sort of roles are demanded of whom.

Social contracts require education

Like all reciprocal agreements with rights and obligations, social contract need to be

educated for. Even when unstated, they work best when their terms are clearly

understood and commitment to them is renewed on a regular basis. Politicians with a

good grasp of how social contracts have developed can ensure citizens stay committed

to the social contract(s) which affect them.

They can do this by:

• educating themselves about their obligations
• promoting to citizens the ideal of engaged and participating citizenry
• working to ensure they themselves meet these obligations

• speaking out when terms are broken or dishonoured
• speaking out when contracts need renegotiating
• discussing with communities what contracts are suitable Working for the common good – or against it In return for meeting basic needs, clans and countries governing bodies expect obedience to laws and contributions towards ‘the common good’. These include such obligations as putting time into education and playing the adult roles that contribute to the survival, order and unity of the group. For larger modern societies this may involve activities such as
• paying fair taxation
• informing oneself about issues affecting your community
• undertaking military/public service in times of emergency
• behaving safely in traffic vehicles Like the parent-children relationship, social contracts can be honoured, dishonoured, neglected or broken. If security is not provided – or itself becomes a source of exploitation and violence – the social contract has been dishonoured. If unresolved, a contract may be no longer valid and/or need renegotiating. ‘Where it is well, there is one’s country’ Over centuries communities, clans and sub-clans have developed customary practices. The aim of these is to make clear the obligations on all to ensure the care and protection of all. Such practices and expectations underpin all relationships between these groups and the state. And contain agreed-on sanctions and penalties. The 2000-year-old saying ‘Where it is well, there is one’s country’ (‘Ubi bene, ibi patria’) recognises that loyalty to a country goes both ways. Under terms of a just social contract, appeals for individuals to honour patriotic obligations are matched by state obligations to individuals and groups. In modern understandings of social contract, the obligations of the more powerful state to intervene to guarantee security are accepted by all who enjoy their advantages. Provision of food, shelter and security – including an independent police force and military – have developed since humans began living in cities 10, 000 years ago.

And the development of independent, salaried police forces (invented only after the

17th century in industrialised cities) meant that a community-enforced, revenge-based

justice was kept in check by written laws and an independent judiciary.

The right to security is basic

Security against threats by more powerful external (or internal) forces often requires a

high degree of organisation. These threats can involve health, welfare or warfare.

Solving these insecurities may involve a mix of gathered information and organised

activities, including:

• payment of sufficient salaries to security agents (to prevent corruption)
• providing education and facilities for people to help themselves
• co-ordination of social agencies to address complex issues
• the use of enforceable sanctions for those who refuse to obey Purposes of social contracts Social contracts, then, perform many legitimising functions including to:
• limit or exclude the power of exploitative individuals or organisations
• give leading figures or governments lawful authority over others
• ensure protection of, and rights for, groups of citizens
• enable public acceptance of the right of authorities to impose sanctions or penalties Rule by general consent, for the general good If a majority of citizens understand and accept a social contract, then a government is legitimate. That is, it can rule by consent, despite particular cases of rule breaking. This consent is achieved through the two-way acceptance of – and commitment to – responsibilities and obligations. For example, if tax is understood as necessary to pay for security, most people will pay for its benefits on that basis. Such agreements recognise that humans are both social and political animals. They emphasise individuals and groups need for others. They also rely on an awareness of the fragility of human lives when confronted with superior forces of nature – or of others.

Examples of common need are the just distribution of wealth for medical and educational needs. For countries where there is a reliable tax take, this can take the form of socialised medicine and welfare payments (retirement or sickness benefits as ‘transfer payments’ from contributing taxpayers to others in need). For rural communities’ common need can means access to affordable education and medicine. Part 2 – Permanent records of contracts can ensure equal treatment Oral history can also preserve the terms of social contracts. However, both city-states with scattered rural communities have felt the need to record them on tablets, pillars, cylinders, parchment, pottery or some permanent material. These were then erected publicly to ensure both public knowledge, respect, and equality of obligation. Social contracts are preserved in many of the world’s oldest records. Many are inspired by religious ideals and some come from arguments emphasising their basis in wisdom, logic and mutual human advantage. The authority of pre-European African tribal chiefs (See Bkgrndr 6-1) came from, and was checked by, orally preserved contracts with the common people. And when the basis of social contracts is customary laws (such as Xeer), or based on instructions by inspired individuals in writings accepted as divine (the Quran), then greater acceptance of its obligations usually results. See Bkgrndr 6-2. Recorded history of social contracts The 2400-year-old dialogue Crito is regarded to be one of the first recorded expressions of the idea of a social contract. In Crito the Greek Plato cites the words of his teacher Socrates who refuses to bribe his way out prison in his city-state to escape a death sentence. Despite what he and his friends regarded as an unjust guilty verdict, he calls the city’s laws his moral ‘parents’. His obligation to those who had brought him up in the way of truth – and his obligation to give a moral example of to others of keeping law and order – was greater than the obligation to save his own life. And for him to live in any other city without such laws would leave him a morally stunted orphan – as well as give bad example to his sons. Epicurus declared 2, 300 years ago there was no such thing as absolute justice but only agreements that are made to prevent the infliction or suffering of harm. The 2000- year-old Buddhist vinaya spells out the behaviour for the common good expected of monks, including not chopping down trees that had a social function for other villagers.

The Quran spells out the obligation to respect treaties and contracts. This obligation is

mentioned specifically in often quoted verses. It is also in many chain

hadiths and reasoned interpretations that have helped over centuries to make moral

obligations clear.

Role of scholars’ interpretations

Scholars and thinkers since have explored when obligations are fair, how they should

be applied, and what sanctions would help keep them. And when and why they apply.

For example, how much tax is a citizen obliged to pay? Is it permissible, under

conditions of war, to pay more than the Quranic 2.5 percent zakat? And can an unjust

state be ignored or even disobeyed (civil disobedience)?

And more recently, whether a Muslim in a non-Muslim majority-state can participate in

democracy – or in that country’s wars.

Abuse of power can make contracts invalid

After decolonisation of African states in the 1960s and the collapse of Russia and

socialist states in the 1980s, Africans have had plenty of reason to question

governments’ abuse of power.

When regions are deprived of their ability to produce food for their people, or when

inhabitants can no longer use traditional pastoral lands, social contracts involving

‘citizens’ lose validity. And relevance. There is little advantage in citizenship when

centralised government cannot provide services.

For politician, then, the language of social contracts may be necessary and useful to

counter arguments of those who try to impose invalid contracts and obligations. This is

because invalid contracts can be imposed in various ways by:

• those who demand obligations without services
• those who insist on contracts through force or psychological coercion
• those who abuse the language and historical concept of contracts to try to confuse moral with political obligations; for example, fighting for unjust wars
• those who apply contracts unequally or hypocritically (they do not keep them)
• those who use unnecessarily harsh sanctions or punishments no longer required for moral or civic enforcement
• those who use selected texts and concepts out of context to justify exploitation

Part 3 – What makes a valid contract?

To know the language of contracts and obligations – like knowing the language that describes how ideas can be twisted and minds forced – is an important part of representative politics. Debates which seek, on behalf of the people, to renegotiate new terms for the social contract between state and citizen, need to know that makes contracts valid. People, politicians and law enforcers should have a basic knowledge of previous contracts and be able to use the language of valid contracts. When a state fails, independent courts no longer apply the same using principles for all. Therefore, a recovering state begins with principles agreed to by consensus. Communities revert to customary laws but for larger concerns IPU identifies the following: a constitution, a representative law-making parliament, and sufficiently salaried, independent judges to interpret them. Contracts entered into freely are longest lasting, the best kept Valid contracts usually begin with groups feeling secure enough to put into words their felt injustices and/or ideas for a better life. When laws are made in national and state debating chambers, and when fair taxation system provides money for security and equal enforcement of laws, citizens can enjoy the fruits of a larger community. Parliaments are the best-known device to achieve consensus about what most people want. The IPU lists the many advantages of centralised government. This includes the power to enact and ‘execute’ laws that will improve people’s lives. Valid social contracts made at the local level by consensus politics can then translate the general will into the commonwealth. One-sided contracts exploit others In times of regional conflict, militant groups sometimes attempt to reinforce their claims to state status by promising a social order previously weakened by war and/or injustices. See Bkgrndr 6-3. They can do this by drawing up one-sided social contracts. These can make taxation demands seen to be excessive. Such contracts can be shown, over time, to lack the freely-given consent which gives legitimacy. Parliaments can reflect the people’s will – and ensure it

Parliaments, as the law-making institutions representing all people, are one of the best

tests of consensus for what is called ‘the general will of the people’. In its law-making

role parliaments can write or rewrite a social contract regarded to be fair on – and to –

all citizens. Parliaments that are run well can therefore be representative of all sectors

of a society. And can achieve agreement for policies from all sectors through their

debate-and-vote system.

The ‘general will,’ therefore, is best assessed by a truly representative one. When

wisdom and common agreement come together in this way, it has been shown that

governments can rely on a high degree of ‘buy-in’ from the general public. Laws,

constitutions, or customary practices that are seen to be both necessary and fair will

be more generally followed – and can be more easily enforced.

Therefore, the development of parliaments (see Lesson 2) has ensured the people’s

will is both informed by, and reflected in, values agreed to be important. As a result,

such things as fair taxes, fair wages, better security and welfare for all, are possible to

achieve. And to be improved.

Social contracts can change – and have

The history of parliaments shows how social contracts have changed over decades.

Changes in social contracts are a reflection of changes in societies, in economies and in

improved understandings of what motivates – or prevents – human behaviour. We no

longer have monarchs whose ‘divine right to rule’ mean they only listen to nobles’

advice on occasions, or when they want to tax more.

Social contracts demanding obedience while exploiting public resources are not

uncommon in post-colonial Africa. As are companies who pay as little tax as possible.

The refusal to grant aid until on-the-ground security can be guaranteed can also be

seen in the light of international social contracts.

Such cases have motivated thinkers to re-examine both divine texts and natural

arguments in the light of shared principles of social justice, equal treatment and

compassion.

Democracy has the capacity to self-correct

The 130-year-old Inter-Parliamentary Union (IPU) states in its principles of democracy

that it is the ‘only political system with the capacity for self-correction’. According to

their guide democracy can create a society that promotes and strengthens:

• the economic and social development of the community
• the togetherness of the society

• national tranquillity
• a climate favourable for international peace
• the fundamental rights of the individual
• social justice This independent parliamentary union, which regularly draws on the freely offered experience of its member states, sums up its findings: “peace and economic, social and cultural development are both conditions for, and fruits of, democracy”. According to the union, therefore, for good governance a social contract drawn up by a state should include these state responsibilities:
• a commitment to education to all groups and minorities
• a special commitment to civic education and awareness
• the shaping of responsible citizenry through involvement programs For maximum participation, IPU maintains, the state should ensure: ‘the enjoyment of civil, cultural, economic, political and social rights.” IPU’s formula for effective social contracts The IPU has found that for rights to be enjoyed in a modern social contract, governments – including all smaller units of civic organisation – should be:
• effective
• honest and transparent
• freely chosen
• accountable for their management of public affairs In its guide to good governance the IPU states that the rights of citizens to justice can be effectively guaranteed by the rule of law as well as the provision of:
• strong judicial institutions
• independent and effective oversight mechanisms
• access by all to administrative and judicial remedies
• respect for administrative and judicial decisions by all
• removal of obstacles to the lack of genuine choice and alternatives

• measures designed to redress imbalances or discrimination based on social grouping, culture, religion, race or gender. See Bkgrndr 1-6 of lesson 1. When states are recovering But what happens when a state is too fragile to protect individuals or groups without the patronage of powerful non-government groups? When the state cannot protect its citizens without the help of outsiders (often with unpredictable agendas), there is a reversion to a mix of customary law and Shariah. Or complete anarchy. In such situations, the way forward may require a mix of old and new. Social contracts involving international agencies need to be negotiated until such time as central government and its security arms can be re-established.

BACKGROUNDER

BKGRNDR 6-1 ADVANTAGES OF DEMOCRACY FOR LOW-INCOME COUNTRIES African democracy before European colonisations In his 1959 classic African Nationalism, 22 Ndebele Sithole argued ‘it is bad history and bad civics’ to deny African democracy before European colonisation. And if the essence of democracy is the will of the people (‘intando yabantu’), Sithole went on, his research proved African people had it ‘since the dawn of their history.’ A call for self-rule and self-determination He concluded his book with a call for the right to ukuzibusa (self-rule) and kuziwitonga (self-determination) in a way that showed ‘the will of the majority of the people.’ After giving colonisers credit for some improvements to native African democracy, Sithole cites a number of examples from differing parts of Africa to contradict the idea ‘democracy was European-introduced to Africa.’ ‘European dictatorship’ In fact, according to Sithole, since Europeans ruled ‘not according to the voice of the majority, but according to that of a minority’ the African did not ‘come into contact with European on a democratic but on a dictatorial level.’ Therefore African nationalism, Sithole maintains, is simply a stand against ‘European dictatorship.’ And while European leaders at the time were self-appointed to their positions of authority, the African ruler on the other hand owed his power to the people themselves ‘who dismissed him from office if they were dissatisfied with him.’ The king is the people Declaring it typical of African history, Sithole quotes his own tribe’s view that the Ndebele big chief or king embodied clearly what was in his people. And that if the king failed to reflect this, the people defied him. Ndebele asserts, therefore, the king’s only true voice was that of his people. He quotes a Ndebele saying: ‘The King is the people. To respect the King is to respect oneself. He who despises the king despise us. He who praises our king praises us. The King is us.’ Using other examples from Ghana’s customary law, and from Nigeria’s Yoruba people, Sithole says the people had real power against tyrants – and against abuse of power. A 22 N Sithole, African Nationalism, (1959; 1968) Oxford Univeristy Press, Capetown.

Ghanese chief who abused his power would be warned by elders that his behaviour was ‘alienating his subjects and bringing his stool in disrepute.’ ‘We do not wish his ears be hard of hearing’ Sithole cites from the Ghanese chief-making ceremony the enstooler’s chant on behalf of the people: we do not wish greediness … we do not wish his ears be hard of hearing … we do not wish that he should act on his own initiative … that it should ever be said, ‘I have no time. I have no time … We do not wish personal abuse.23 Chiefs were dependent upon advice for their office According to Sithole, it was obvious from the way elders dealt with the usual complaints against a chief: ‘excessive drinking, going after other men’s wives … neglecting the advice of elders’ that the chief was dependent upon for his office. And the elders were also dependent upon the common people for theirs. Among the Swazi and Bechuana too, Sithole claims, a chief could be tried by his own council if he broke the law. And among the Yoruba, declaring war was such a grave responsibility that a king was expected, under the laws of his country, to die before his defeated army returned home – and if he did not, the people saw to it this law was executed … . Real authority comes from the people Good government, therefore, was popular government. A headman who had more persons in his village was regarded with envy by other headmen. And a chief with more villages under his jurisdiction than other enjoyed greater social and political prestige. Almost all the tribal institutions Sithole examines owe their real authority to the people and not to the office-holders. Also, Sithole asserts, European powers had preserved the shell of kingship and chieftainship but emptied them of their real content. Will of the people versus will of a foreign power Thus such African kings and chiefs no longer represented the will of the people, but the will of a foreign power. Accordingly, Sithole wants not just to honour a pre-European native democracy, but also to make a claim for a real democracy all the peoples of Africa once enjoyed. 23 Apter, D. E. 1957: The Gold Coast in Transition. Princeton University Press, Princeton. P. 108; Sithole (1959) p. 93.

BKGRNDR 6-2

THE QURAN AND HADITHAT ON HONOURING CONTRACTS 1 A well-known series of Qur’anic verses exhort Muslims to honour any contract which they enter into, including: “Fulfil God’s/Allah’s covenant when you have entered into it and break not your oaths after asserting them, for you thereby make God your guarantor.” [Q. 16:91] And “Fulfil every contract for contracts will be answered for [on the Day of Reckoning]” [Q.17:34]. There is also a famous hadith, reported through multiple chains and in multiple forms, about the sinfulness of breaching contracts: When God gathers all earlier and later generations of mankind on the Day of Judgement he will raise a flag for every person who betrays a trust so it might be said that this is the perfidy of so-and-so, son of so-and-so. (Muslim 1998, 3: 1094) Aman, trust or security, is the value and most common present-day Islamic justification, in both Sunni and Shi’ite sources, for honouring non-Muslim interests while residing in non-Muslim lands. The idea that Muslims should not ally themselves with non-Muslims or non-Muslim polities is often argued by quoting Q: 3:28: Let not the believers take the infidels for their allies in preferences to the believers – for who does this, has nothing to do with God/Allah – unless it be to protect yourselves from them in this way. God/Allah warns you about Himself and the final goal is to Allah/God. Also, a series of other verses including 60:1, 3:118, 4: 139 4:144 and 5: 80-81 – which seem to prohibit ‘loyalty,’ ‘friendship,’ or ‘alliance’ with non-Muslims – have all been used by some to prohibit residence in non-Muslim states, contributions to non-Muslim welfare, and cooperation with non-Muslims in common ventures. However, Faysal Mawlawi addresses the question of solidarity and civic friendship, raised by these loyalty verses, by stating that secular solidarity is universal. He claims Muslims can feel a form of ‘innate love’ [hub fitri] for non-Muslims, meaning affection based on shared humanity and common interest, to be distinguished from ‘creedal love’ [hubb ‘aqa’idi] shared among Muslims. In essence arguing for a common, neutral ground of secular space, Mawlawi argued in 1994: Islam would prefer to be expressed through a community where politics and metaphysics are fused. But given the reality of sharing political space with non-

Muslims, it is preferable to limit solidarity and political power to that which all humans have in common. Mawlawi seems to affirm the neutrality of that space as it has developed in the western practice of the separation of Church and State, while acknowledging that there are times when it may be difficult: If non-Muslim states made wider claims to metaphysical truth, then it might be more difficult for Muslims to affirm citizenship within them. (Mawlawi 1999, 210-19) March, A. F.. (2007). Islamic Foundations for a Social Contract in Non-Muslim Liberal Democracies. The American Political Science Review, 101(2), 235–252. Retrieved from http://www.jstor.org/stable/27644443

BKGRNDR 6-3

UBUNTU: SOCIAL JUSTICE WITHOUT REVENGE The specifically African word of ubuntu, ‘regard for common humanity,’ has much to offer the future prosperity of those suffering from past injustices in all parts of Africa. Where militant political groups still seek single-solutions to complex problems, governments representing development for all have special responsibilities to promote alternative solutions. One of these is the African idea of ubuntu which refers to a specific kind of ‘African humanism’, humanity towards others. Or: ‘the belief in the universal bond of sharing that connects all humanity.’ It emerged from a 1960’s trend to Africanisation by political thinkers rebelling against colonisation. This idea was written into the very constitution of South Africa in 1993: There is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. Rightly or wrongly, political commentators came to regard this attitude as a specifically African (originally South African) kind of socialism or humanism, to be often found in indigenous blacks but often lacking in colonising whites. The term was often used in the context of the transition to black majority rule in Zimbabwe and South Africa. This circuit-breaker way thinking, ubuntuism or regard for humanity, takes into account the need to address the past in the light of the need to progress freely into the future. And to do so without victimisation. The ‘Truth-and-Reconciliation’ process championed by South Africa’s Desmond Tutu after apartheid was abolished in the 1990s became an essential part of that country’s healing, social progress. ‘Bottom-up government,’ customary law or even religious law solutions may be ineffective when communities are traumatised, confused or have lost knowledge of reasonable alternatives. Tribal or national grievances can lead to traditional solutions of Xeer, or vendettas fuelled by revenge ethics. These traditional ways may work as balancing mechanism but also lead to an inability to enjoy the fruits of cooperation. Or result in progress-crippling victimisations. Ubuntu is a concept that fits the ‘Horn of Africa’ as well. There is everything Islamic about the concept of forgiveness and virtue for the sake of a common humanity. Scholars who grapple with seeming contradictions of textual calls to jihad have resolved these by reference to later hadiths pointing to the higher obligation to the broader jihad of education or communal peace. Or a justice which is obliged to respect

solutions which no longer need literal solutions to ensure citizen security, especially in non-Muslim majority nations. See…. https://scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000400003