THE BOURGEOIS/ SOCIAL CONTRACT PHILOSOPHERS AND BOURGEOIS CONSTITUTION

Jaba Shadrack (Assistant Lecturer), UDSM – School of law (Department of Public law)

jaba@udsm.ac.tz or jabashadrack@gmail.com

Visit: www.scribd.com/jabashadrack

INTRODUCTION:

This lecture explores main ideas of classical (social contract) philosophers on [the] emergence human governments (civil society) and social orderliness at the national level as well as at international level. It attempts to provide an insight on human life before the emergence of state and law, in the same vein, explaining the relationship, in terms of rights and duties, between the ruler and the ruled. Again, it underscores the contribution of classical philosophers to the development of modern constitutions, constitutionalism and jurisprudence (legal philosophy).

HUGO GROTIUS (1583-1645)

He was a Dutch jurist credited as the father
of modern international law and relations. He lived in the times of the 8 years war between Dutch and Spain; and 30 years war between Catholic and Protestant. He is best known for his work, De Jure Belli ac Pacis i.e. On the Law of War and Peace, 1625. He was mainly concerned with conflicts among nations, and between religions.

His main ideas:

State of nature and social contract:

• To him, constitution of each state had been preceded by a social contract.
  
• By social contract, people had chosen the form of government which they considered most suitable for themselves.
  
• Through social contract people transfer their power (to govern themselves) to the ruler (civil society/government/state) to find protection against danger or as a result of war or just because they prefer autocratic rulers to liberty.
  
• Once the people have entered into a civil society through social contract, they forfeit their rights to control or punish the ruler.
  
• However, in very exceptional circumstances, people could revolt against tyrannical ruler.
  
  
  
  
  
   
  
  
  Social contract: describe a broad class of theories that try to explain the ways in which people form states and maintain social order.
  

Natural law and the state:

• The state is a complete association of freemen, joined together for the enjoyment of rights and for their common interest.
• To him, natural laws are immutable and cannot be changed even by God himself.
• He argued that rulers are bound by natural laws which tame them against abuse of powers
• He saw the need of separating divine law from natural law. He urged the papacy to reconcile with Protestants, thus end religious schism/division.
• He did not believe in the sovereignty of the people, but that of the monarch and that resistance to authority will be detrimental to the natural order of the society.
• He called human nature as the grandmother, natural law the parent, and positive law the child.
  
  
  Peace and law of nations:
  
• Human nature is characterized by the desire for a peaceful and orderly society.
• Urged the respect of other people's property and the restitution of gain made from it.
• He insisted peaceful existence between nations and establish laws of nations. That it is possible to comprehend the sources of the laws governing both individuals' behaviour and the conduct of nations.
• The most fundamental of his international law principles were pacta sunt servanda (respect for promises and treaties signed), and freedom of the seas.
  
  
  Theory on War:
  
• He believed that there are circumstances that war is unavoidable (theory of just war/ just causes of war), for instance, fight in self-defence, reparation for injury and punishment.
• That a rational system governs international relations. He also advocated for rules to govern conduct of war, i.e.
  jus ad bellum (right to war), and jus in bello (rules of war).
  
  
  THOMAS HOBBES (1588-1676)
  

Hobbes is an English philosopher who lived during the days of civil wars. He is best known for his works titled as De Cive (1642), and Leviathan
(1651) in which he describes human life in the state of nature, and the emergence of civil society through social contract. Hobbes is also credited as a founder of the positivist tradition. He is labelled as "an
absolutist".

His main ideas:

Natural Law / Law of Nature (lex naturalis)

• He developed 19 principles of natural law
• Natural law to him, are not ethical principles but laws of human conduct based on observation and appreciation of human nature.
• The chief principle of natural law was the right to self-preservation.
• Law of nature is "a precept or general rule found out by reason, by which man is forbidden to do that which is destructive of life, or takes away the means of preserving the same and to omit that by which he thinks it may be best preserved".
• The fundamental of nature is that "every man has to endeavour to obtain peace as far as he has hope of obtaining it".
  
• When he cannot obtain it, he can seek and use all helps and advantage of war.
  
• That men must perform covenants made
  
• Performance of covenants is a fountain and origin of justice
  
• Injustice is nothing else than the non-performance of covenants.
  
• All law is dependent upon sanction. He says, "the governments without the sword are but words, and of no strength to secure a man at all".
  
• A real law is civil law, commanded and enforced by the sovereign
  
• The law of nature and the civil law contain each other and are of equal extent
  
• Natural law is not a superior law, but positive law is
  
• Judges are supposed to interpret the law as if the legislators intended to observe the laws of nature.
  
  
  State of Nature:
  
• Means the absence of political order/structure and law
  
• There was perpetual and devastating warfare which threatened everyone. It is men and arms that make the force and power of the law.
  
• He describes human life in the state of nature as solitary, nasty, brutish and short due to absence of law and political order. Each person had unlimited natural freedom (right to all things/ endless war of all against all i.e.
  bellum
  omnium contra omnes) to plunder, rape and murder.
• Constant and unending civil war in the state of nature.
  
• Before any forms of political order (state of nature), every man has a right to everything, even to one another's body.
  
• Each man is at liberty to perform whatever action he sees fit. No one could stand out to protect the right holder in the exercise of the right.
  
• Individuals are in competition with one another when they attempt to exercise their right of nature. Such competition is unrestricted with no rules that would place an obligation upon anyone to refrain from any action.
  

Social contract:

• This theory avers that individuals unite into political societies as a process of mutual consents, agreeing to abide by common rules and accept corresponding duties to protect themselves and one another from violence and other kind of harms;
• The subjects could demand the fulfilment of any obligation by the ruler. The only condition was that the absolute ruler must keep order.
  
• Whatever keeps men out of the state of nature and in civil society is by nature legitimate
  
  
  Civil society/the state/ sovereign:
  
• Natural reason dictated to man the rule of self-preservation for which he tried to escape from the state of permanent insecurity
  
• He did by transferring all his natural rights to the ruler whom he promised to obey unconditionally (the rule became an absolute ruler).
  
• The right to self-defence and preservation are given up upon entering a commonwealth/civil society/political community through social contract i.e. citizen agrees to give up some of their liberty rights to an absolute sovereign/monarch. Again, members of such civil society accept obligations towards others to avoid state of anarchy/ lawlessness.
• No distinction between state and society
  
• All social and legal authority is concentrated in the sovereign
  
• The church is subordinated to the state just like another corporation, thus the state should interpret the law of nature
  
• The legal order is essential to maintaining the order of a civil society
  
• Sovereign is one who govern through law
  
  
  Transfer of power:
  
• He was against civil disobedience as it could revert the situation to state of nature
  
• Sovereign power of the king (through derived from the people) is absolute (not subject to review by the subjects or ecclesiastical powers.
  
• To him, absolute monarch though tended to be arbitrary or tyrannical was a best option to anarchy.
  
• The subjects have a right to resist the sovereign when the sovereign threatens the subject with serious harm. Therefore, if the sovereign can no longer offer protection to the subject, then the obligation of obedience ceases.
  
• Any order or any guarantees of minimal peace and stability must be preferred no matter the character of its sovereign.
  
• However, where resistance was successful, the sovereign cease to govern, thus the subjects could transfer their disobedience to a new ruler.

  JOHN LOCKE (1632-1704)
  

He was an Englishmen schooled at Oxford University and a physician. He lived during the era of repression, rebellion and civil wars. He was an opponent of Hobbes' ideas especially, 'absolutism'. Locke authored, "the Two Treatises of the Government" (1689). He is labelled as "a reluctant democrat" and "individualist".

His main Ideas:

Law of nature:

• Stands as an eternal rule to all men, legislators and others.
  
• Rules enacted must be conformable to law of nature
  
  
  
  State of nature:
  
  • It was paradise. All were equal and independent but they lacked organization.
    
  • It was a state of peace, good will, mutual assistance
    
  • All men were created equal in the state of nature by God. People were under no obligation to obey one another. Again, people did not ask for permission to act or depend on the will of others to arrange matters on their behalf. Thus, it was a state of anarchy (lawlessness), characterized by war of everyman against everyman. Thus, civil society emerged for the protection of property (i.e. life, liberty and estate).
    

Social contract:

• Majority vested their powers in a government/ commonwealth.
  
• Legitimate governments are those that have the consent of the people (foundation of government lies in consent). Thus, a ruler without such consent or who acts against interest of the people can be legitimately overthrown (i.e. the right of revolution safeguard against tyranny).
  
• Used social contract to justify government by majority which held the power in trust, with the duty to preserve individual rights whose protection was entrusted to them by individuals.
  
  
  
  Civil society/ the State
  
• Government is morally obliged to serve people by protecting life, liberty and property.
  
• Favoured representative government, rule of law and inviolable freedom under the law
  
• Denounced tyranny and that when government violates individuals' rights (i.e. slavery, servitude, arbitrary powers, property appropriations) people may legitimately rebel against it. The law of nature forbids reducing one's fellow to a state of desperation.
  
• Men uniting into commonwealths, and putting themselves under government is for the sake of protecting their property.
  
• People are sovereign (not rulers)
  
• No taxes on properties of the people without consent of the people (no taxes without representation).
  
• No government can be justified by an appeal to the divine rights of the king. He opposed the increasing powers of the king, argued that the country was headed for a condition of slavery.
  
• He also argued against religious persecutions, which had the impact of hindering commercial and industrial expansion.
  

Human Rights

• Placed an individual in the centre and invested him with inalienable natural rights
  
• Individuals had a natural inborn right to life, liberty, and estate. He paid chief attention to the property rights.
  
• That private property is absolutely essential for liberty
  

Jean-Jacques ROUSSEAU (1712-1788)

French philosopher who authored the Social Contract (Du contrat social)

1762 and Emile, he was concerned with setting up of a political community/civil society. He is labelled as "extreme democrat", "utilitarian" and "father of true democracy".

His main Ideas:

Law (of nature)

• Law is the expression of the general will/common interests of the common. In other words he meant that law is resolution of the whole people for the whole people, touching a matter that concerns all.
• Enactment of the government is merely corollary of the general will.
  
• People in obeying the law, would be obeying themselves
• No body in the state is above the law as every body is a member of the sovereign body which is the source of law
  
• The law representing the general will cannot be unjust because nobody is unjust to himself
  
• A state is legitimate only when it is ruled by law
  
• Legislative power belong to the people
  
• Sovereign have no power other than the legislative power, it acts only by means of the laws. The sovereign cannot act, save when the people are assembled
  
• Law and political order/structure are not natural but are human's creations. Thus, law and political order are legitimate only to the extent that they meet the general interest or will; this is because law and political structure may be changed by the citizen through elections or violence.
  
  
  Natural man theory/ State of Nature:
  
• Human beings were essentially good and equal in the state of nature.
• Reason did not guide actions of individuals (individuals were moved by emotions)
• Every individual had unlimited liberty, and lived free life of a savage
• No private property, no competition and no jealousy
• Knew neither right/virtue/good nor wrong/vices/bad
  
  
  Social contract:
  
• The problem associated with the state of nature was solved through social contract.
• People entered into a social contract among themselves, establishing government and educational systems to correct the inequalities brought about by the rise of civilization. In the civil society, men gave himself and all his goods to the community to gain civil rights in return for accepting obligation to respect and defend the rights of others.
• Under social contract, everyone surrendered to the community all his rights and the result was that the community became the sovereign.
• To him, liberty was possible in a civil society only where was direct rule by the people as a whole in law making, where popular sovereignty was indivisible and inalienable.
  
  
  Civil society:
  
• Civil societies emerged after the state of nature was corrupted by the introduction of private property, agriculture, increase of population, discovery of metallurgy, development of science and commerce.
  
• Simplicity and happiness disappeared; people started thinking in terms of mine and theirs. Inequalities emerged also; the society was divided into rich (stronger) and the poor (weak).
  
• Life became intolerable, there were wars and murder everywhere
  
• Human development and inequalities needed human cooperation in a form of civil society. He argued further that, "the first man who after enclosing a plot of land, saw fit to say, 'this is mine', and found people who were simple enough to believe him, was the true founder of civil society".
  
• Thus, the society formed association (civil society) which would protect individuals and properties.
  
  
  The State (sovereign):
  
• Administration is divided into two parts i.e. the sovereign (represent general will and is the legislative power in the state), and the government (acts only under a particular will).
  
• To him, the sovereign is infallible, indivisible, unrepresentable and illimitable
  
• Government's legitimacy comes from the citizen (i.e. citizen delegate their right to self-defence/ preservation, in turn the government act as an impartial/neutral agent of self-defence.
  
• The sovereignty of the state is absolute
  
• By sovereignty (as opposed to Hobbes), he meant the whole community (not Monarch or head of state).
  
• The sovereign must ensure equality of all before law and maintain a rule of justice
  
• Individual in the civil society is free because does not surrender his rights to an outside authority, but to the corporate body of which he himself is a member. Restrictions on the liberty of individuals are self-imposed.
  
• Referring to illegitimate government, he says, "a man is born free, and everywhere is in chains"
  
• General will/general interest/popular will/collective will (manifestation of a sovereign and spirit of citizenship)
  
• Minority should obey or respect majority will
  
• No justification of disobeying general will
  
• Individuals who refuse to obey general will must be compelled by the state by way of sanctions
  
• General will cannot be delegated
  
• State should be a small one so that all the people may be able to assemble at one place and make laws. To him, the larger the state, the less the liberty.
  
  
  Charles de Secondat, Baron de MONTESQUIEU (1689-1755)

He is a French jurist (a judge in French Court), a nobleman and philosopher (influential political thinker). His masterpiece, "the spirit of the law" gave his title, "father of constitution law" and "balanced democrat". He wrote extensively, on separation of power and despotism.

• He sorted the political world into republics, monarchs and despotism. To him, despotism is a rule in which a single person directs everything by his own will and caprice, and controls who controls subjects through force and fear.
  
• Despotic government use law to prevent civil disorder and facilitate the police function of the state (not furtherance of development). Again, despotic government concentrate all executive, legislative and judicial powers in one person, e.g. the Turkey monarch where all powers are vested in the sultan). In the 'Persian letters' describes Turkey as a place where no one laughs.
  
• Under despotism women become objects of luxury or the living instruments of men's felicity.
  
  
  His main ideas in the book, "Spirit of the law (1748)":
  
• He called England a republic disguised in a form of a monarchy (mixed monarchy).
  
• Praised England for its freedom (as the nobility, judiciary and legislatures limited the executive power of the monarch).
  
• In every government there are three sorts of power i.e. legislature, executive and judiciary. The executive, makes peace or war, send or receives embassies, establishes the public security and provides against invasions. The legislature, prince and magistrate enact temporary or perpetual laws and amend or abrogate those that have been already enacted. The judiciary, punishes criminals, or determines the disputes that arise between individuals.
• The political liberty of the subject is a tranquillity of mind, arising from the opinion each person has of his safety.
  
• Insisted on the sovereignty of individuals' will/independence/liberty
  
• When the legislative and executive powers are united I same person, or the same body of magistrates, there can be no liberty.
  
• Monarch or senate may enact arbitrary laws and execute them tyrannically. There is no liberty, if the power of judging be not separated from the legislative and executive powers. Where it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge will be the legislator. Where it joined to the executive power, the judge might behave with all the violence of an oppressor.
• There would be an end of everything (liberty) where the same man, or the same body, whether of the nobles or of the people to exercise those three powers that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.
• He argued, if separate powers of government are placed in different hands, no individual or group of people can monopolize political powers (i.e. differentiation of functions).
• The state will perish when the legislature power shall be more corrupted than the executive.
• He believed the English constitution establishes functional separation between the legislature, executive and judicial powers. In England, the monarch exercises executive powers, legislative power are shared by hereditary nobility and the peoples' elected representatives, judging powers vested in persons drawn from the body of the people.
  
  
  Impacts of classical philosophers:
  
• Separated law (positive law) from moral duty (natural law) by their emphasis on rights rather than on duties.
• They liberated individuals from the ties of feudalism and the church by discouraging absolutism and religious state.
  
• Prepared a ground for modern theories of government, for example, the American Federal Constitution (1787) was drafted on the principle of 'Popular Sovereignty/Sovereignty of the people' (government resting on the consent of the governed), and 'Separation/distribution of Powers' between government branches.
  
• Inspired political revolutions in US and France
  
• Inspired totalitarian forms of government through Rousseau's doctrine of the general will, and absolutism theory by Hobbes.
  
• Spurred on the development of modern theories of public international law and of course international government/organization
  
• Inspired legal positivism, utilitarianism thinking and re-emergence of natural law thinking
  
• Advocated for parliamentary democracy and popular sovereignty
  
• Paved a way for emergence of bourgeoisie constitution
  
  
  The Bourgeoisie Constitution:
  

The struggle for power between various classes in England i.e. King, Baron, Bourgeoisies accompanied by writings of philosophers pioneered the emergence of bourgeoisie constitution. In 1628, Baron Hampden petitioned to the King demanding for representation of the people in decision making bodies. In that, there should be no taxes without representation. It was around this particular time, parliament started to emerge as supreme body. Among other things, the parliament reduced the powers of the king to impose taxes and it also abolished 'executive courts' or 'prerogative courts' such as court of Star Chamber, the court of high commission and etc. The emerging bourgeoisie class pushed for the republican constitution. However, the King and powerful feudal nobility opposed the ideas of republicanism.

The structure of the Bourgeois Constitution:

Essentially, the bourgeoisie constitution emerged in England after the English/Glorious revolution of 1688. It had the following organs;

The Parliament:

• It was created as the main organ of the state (i.e. it was a sovereign body), therefore every public act depended on the parliament.
• The parliament had committees like 'the House of Lords' (as a higher chamber) and the judicial committee.

The Executive:

• It was constituted around the prime minister (leader of the majority party in parliament)
  
• The King ruled through the Parliament but had no executive powers
  

NB:

Acts of Settlement, passed after 1688 decreed the judicature to be independent in determining matters brought before them.

Features of Bourgeois Constitution

• Universal suffrage (ballot box's system)
  
• Bill of rights (liberty) e.g. Petition of rights, Magna Carta, Act of settlement (England), Declaration of the rights of man and citizen, 1789 (France), Declaration of independence (US).
  
• Representative democracy/ liberalism
  
• Three organs of the state i.e. distribution of powers (executive, judiciary, and legislature)
  
• Based on the supremacy/sovereignty of the parliament
  
• Competition between political parties in elections (pluralism). In 1661 and 1678 the Cavalier parliament enabled people of England to form political parties. The pro-king organised as "Tories" (conservative party), and the anti-king organised as "Whigs" (reforming party which advocated for supremacy of the parliament, it was succeeded by the liberal party in 19^th Century).
  
• Secularism (non-religious state)
  
• Bicameralism (legislative body having two chambers) i.e. upper and lower house, e.g. senate/congress or house of lord and house of common.
  
• Maintaining overseas vassal territories in a form of colonies (expansionism tendencies)
  
• Multilateral imperialism and company's sovereignty
  
• Popular sovereignty (majority governance and minority rights) e.g. US Federal Constitution (we the people…….).
  REFERENCES:

John Locke. The Illustrated Magazine of Art, Vol. 1, No. 3, pp. 181-183 (available at http://www.jstor.org/stable/20537939> 17/12/2011 06:54 hours

Armitage, David (2004) John Locke, Carolina, and the "Two Treatises of Government".

Political Theory, Vol. 32, No. 5 (October), pp. 602-627

Boesche, Roger (1990) Fearing Monarchs and Merchants: Montesquieu's Two Theories of Despotism. The Western Political Quarterly, Vol. 43, No. 4 (December), pp. 741-761

Chakravarti, K.P. (1989) Jurisprudence and Legal Theory, Eastern Law House, Calcutta.

Curran, Eleanor (2002) Hobbes's Theory of Rights: A Modern Interest Theory. The Journal of Ethics, Vol. 6, No. 1, pp. 63-86

De Montesquieu &
Franklin (1821) Dialogue on the Principles of Representative Government, between the President de Montesquieu and Dr. Franklin. The North-American Review & Miscellaneous Journal, Vol.12, No. 31 (April), pp.346-365

Dyzenhaus, David (2001) Hobbes and the Legitimacy of Law. Law and Philosophy, Vol. 20, No. 5 (September), pp. 461-498.

Freeman, M.D.A. (2008) Lord Lloyd Introduction to Jurisprudence, Steven & Sons, London.

Jeffreys, M.V.C. (1974) John Locke. The British Medical Journal, Vol. 4, No. 5935 (October 5), pp. 34-35

Krause, Sharon (2000) The Spirit of Separate Powers in Montesquieu. The Review of Politics, Vol. 62, No. 2 (Spring), pp. 231-265

Mahajan, V.D. (2007) Jurisprudence and Legal Theory, Eastern Book Company, Lucknow.

Mvungi, E.S.A (2007) Constitutional Law in Context: A Book on General Principles of Constitutional Law, Vol. I. (unpublished).

Reeves, J.S. (1925) The Life and Work of Hugo Grotius. Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969), Vol. 19 (April 23-25), pp. 48-58

Resnick, Philip (1987) Montesquieu Revisited, or the Mixed Constitution and the Separation of Powers in Canada. Canadian Journal of Political Science, Vol. 20, No. 1 (March), pp. 97-115

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