By Kajila Luneta
One of the most foundational and universal concepts in the modern legal and political landscape is that of the social contract, serving as does as the premise for the rule of law and subordination to the state. One consequence of this universality is that the understanding that the citizen’s relationship to the state is founded on a contract of sorts is not as often followed by the question of whether or not the state is in breach of this agreement.
The premise of
this article is to argue for the existence of one such breach of the social
contract on the part of the state. Characterised by the nature of the
government’s policy in regards to widespread and systemic poverty, and its fundamental
failure in fulfilling the obligations of the social contract.
The basic terms of the social contract can
best be understood when looking at its definition as laid out in black’s Law Dictionary, 7th edition: the express or implied agreement
between citizens and their government by which individuals agree to surrender
certain freedoms in exchange for mutual protection.
From this
definition, it can be concluded that the key aspect of this contract is the
surrendering of freedoms in exchange for protection from the state, with the
protections being proportional to the surrenders, towards the end of creating a
coherent society. For example, in obeying the social contract and not
committing violence, one obtains the state’s protection from violence being
done to them, in the assurance of retribution from the higher power that is the
state.
Because the social contract requires much more of civilised society than simply not
committing violence, it would naturally follow that each requirement would
be paired with a matching form of protection. But if the state were to require its
citizens to submit to a form of governance while leaving them bereft of the
corresponding protection, then that would amount to a breach such as that
committed by the government.
To establish this breach, this article will first seek to advocate an expanded view of the violence and precarity the state is obligated to protect citizens from as their obligation under the social contract, to include economic precarity. It will then establish the primary means by which the state addresses the problem of poverty, and in doing so allege that this method does not meet the obligations implied by the social contract, thus establishing the breach.
Redefining a Conception of Violence
Thomas Hobbes
famously framed the social contract and it's benefits to any given society in
contrast to the state of nature[1],
in which individuals were left to fend for themselves in a world that is 'solitary,
poor, brutish and short', in the state of nature, violence is prevalent
because people are more willing to resort to violence in an environment absent
of assurances that violence will not be used on them. This state is remedied by
the social contract, which exists as an exchange of certain freedoms for the
security in numbers and institutions that would save one from existing within
the state of nature and the resulting precarity.
If the state’s obligation is to prevent violence, and the resulting lack of
faith in the social contract, then the natural follow-up question would be,
‘What amounts to violence?’
The historical
understanding of what was meant by violence in the context of social contract
theory and the state of nature refers, of course, to the physical threat to have
one's property or life taken in the absence of the protection of a state, but
is this to be the only conception of the term?
The connection between the right to life and the right to protection from
economic hardship is one that is well-tread legal ground at this point, as can
be seen in landmark cases such as that of George Peter Mwanza[2].
In this case, an
entitlement to second-generation rights, normally not guaranteed as a matter of
law, was established as naturally arising from the first-generation right to
life, specifically in circumstances where the denial of the former would result
in the de facto absence of the latter.
Considering this established precedent; for what reason should we define
violence under the social contract to include only the protection from death
(which remains a very real consequence of poverty) when in effect all forms of
suffering that arise from not being able to fulfil one's basic needs carry with
them both the same risks to the individual and to the faith in the social
contract?
Should this
expanded conception of violence not be considered, then the faith in the social
contract is undermined by the disproportion between protections granted and
freedoms surrendered. Much in the same way that a citizen not guaranteed
physical safety by the state would need to take up arms in his own defence,
what reason does a homeless or starving individual have not to steal when that
situation could result in harm just as real as a stab wound?
Nature of the State’s Approach to Poverty Alleviation
How then are the protections of the modern state contrary to this understanding of violence? This article would not go so far as to claim that your average nation does nothing about poverty, much less Zambia, in which issues of employment rates and affordability are key issues for every administration. It is like any given country’s
response to poverty, specifically that of its legislation, that a contradiction
with the promises made to the individual by the social contract arises, and the
breach that is the subject of this article is found.
As a nation, Zambia is no stranger to the conception and acknowledgement of
poverty and precarity being at the heart of our status in the global community,
showing itself in the almost never-ending discourse around the topics of
reliance on aid, national debt and unemployment rates. The problem is that the chosen response of
the government to this almost ubiquitous state of affairs is primarily and
overwhelmingly that of the economy and economic means.
In terms of responses to widespread wealth disparity, economic means here
refers to initiatives that exemplify the human capital approach to poverty
alleviation as some economists have defined it[3],
one that sees investment in humans, themselves considered to be a form of
capital to be grown, as a means of combating poverty.
It includes
measures such as community development funds as well as incentivising foreign investment and creating employment opportunities, any initiative from
the government that seeks to introduce money into the economy in the form of
capital and opportunity that will then be taken advantage of by the parties
that need it. One such example would be the market space constructed in Choma
with money from the local community development fund; the resources are not
used to combat poverty directly, but to create and ease the circumstances in
which people may raise themselves from poverty by using the provided market
space.
It is characterised by the reasoning that channelling this money into the economy
and the systems of wealth distribution that already exist within it. As well as
the belief that providing more avenues for the underprivileged to access the
benefits of these funds through job creation and the like will see the problem
of poverty be if not solved, then almost eradicated, with the livelihood of the
nation’s people rising almost in lockstep with its GDP.
The State’s Breach: Incompatibility Between Economic Means and the Social Contract
Regardless of the amount of efficacy one may ascribe to economic means of combating poverty, it cannot serve to fulfil the government’s obligations under the social contract as established here because it fails to provide both the security and universality needed to do so.This is because as
established earlier, the social contract is one that is especially reliant on
the presence of security to justify participation in the contract itself
without fear, and justify the surrender of the rights to provide oneself
security at the expense of others. The current paradigm of poverty alleviation
fails by virtue in by virtue of its reliance on the ultimately contingent
entity that is the economy itself.
What is meant by
contingent in this context is the nature of the economy to be predicated not so
much as being good, as it is on being better than someone else and thus
by its nature, unable to apply to everyone.
When the primary method of helping the
disenfranchised is to provide them the capital them need to get started in an
ultimately competitive economy (as measures such as CDF, soft loans and
subsidisation aim to), then the silent caveat will always remain that a
supposedly inalienable right must be earned with the tools given,
and earned at the expense of others.
For an example of
this, consider the earlier-mentioned market constructed with funds from the
community development fund.
If one is to
achieve the level of safety in shelter and livelihood higher than the average Kantemba
owner, then the government may deign to give them the capital in the form of
the soft loans which are also an aspect of CDF they must still prove themselves
'better' than the other Kantemba owners, to make use of the finite resources
(customers, market and capital) that, when concentrated in you enough to
succeed, deny this competitor that supposedly inherent right by virtue of being
needed to claim it.
It is the prevalence of this system in much more than just Zambia that sees the
countries with the economies and GDP and yearly export rates Zambia has been
chasing since before it was a country, still have levels of poverty in no way
proportional to the extreme amount of wealth they contain. If the country with
the best economy in the world cannot manage to eradicate homelessness, then the economy is a faulty means of combating homelessness.
A parallel to this system would be attempting to remedy the state of nature
and in a pre-modern society with widespread physical violence by handing out
martial arts and self-defence lessons. The best it could achieve would be for someone
different to be suffering than at the start of any given measure, at the same
time creating the false perception that those who continue to suffer deserve it
in some way. So long as aid remains contingent, someone will always fall
short of whatever quality the aid is contingent on.
This cannot be considered fulfilling the social contract so long as it relies
on some personal quality to entitle one to their due under the contract, which
should already be secured with citizenship and compliance with the law.
Rebuttals
and Responses
Of course, one
might still claim that the current institutional response to precarity does not conflict with this understanding of the social contract, that, similar to the discourse surrounding the provision of second-generation rights,
the best that can be expected of the government in the face of such a lack is
what it is doing currently. It may also be claimed that, regardless of the
nature of the contract, to imply the state is obliged to provide no strings attached
social amenities would be harmful. With these objections claiming that this
harm could be of both a material and normative nature, that is to say, either it
would be too expensive or it would make people too lazy to have these things
guaranteed by the government.
To address the first of these claims, one should consider the material effects
of such a policy in comparison to the other primary stance on poverty
alleviation already discussed in this article: economic means. Rather than attempting to raise funding from scratch or increasing taxes, the funding
already directed towards the purpose of improving the lives of citizens should
be at least partially redirected towards a more direct means of doing so (food
banks, free or minimal expense housing, etc). This would not just carry the
direct benefits of standards of living across the board, but would also serve
the purposes of improving the economy by virtue of
i) reducing one of the primary causes of ever-increasing
wealth gaps between the highest and lowest rungs of a society, namely that of
those in advantageous positions having those advantages re enforced by not
having to worry about ongoing costs such as rent and
ii) providing a
buffer on inflated prices for essential elements by virtue of limiting demand
with free alternatives. The prices of land ownership, rent and basic food are
less likely to skyrocket when alternatives exist beyond homelessness and
starvation.
Furthermore, the
importance of social security to the causes of poverty alleviation and economic
security has been demonstrated by the studies shown in works such as The Economics of the Welfare State by Nicholas Barr [4], in
which high levels of social safety nets corresponded with social mobility and
increased standards of living.
The second
rebuttal regards the claims of normative harm resulting from this obligation
being fulfilled, that in providing the protection from the risk of homelessness
guaranteed under the social contract, would disincentivise active and productive
participation in society.
The first is the
precedent provided by various similar initiatives, consider the example of the
RDP housing of South Africa, a project of that nation’s Department of Human Settlements. This serves as an example of free housing provided to citizens
below a certain income threshold, an initiative which has been functioning
since 1994, without any such consequence. Instances like this provide evidence
that such measures serve as safety nets and jumping off points, and not places
within which people stagnate at their current positions.
Character and Specifics of Proposed Solutions
If the government
is to remedy this breach of the social contract, then the primary means of
doing so, the article wishes to explore in this final section, is that of
legislation as a primary means of remedying the state of economic precarity
presented by the current circumstances. This is because the law represents an
avenue of remedying the economic equivalent of the state of nature we currently
exist within. This will be laid out in the form of general approaches and
specific responses, the character and the content of the proposed legal
framework, so to speak.
In the case of a general nature, the legal
response considers the case of discrimination on the grounds of sex as an illustrative
example.
Exclusion along the lines of gender and sex in the Zambian context was never as
institutional as it was in countries that prohibited women from voting or
having bank accounts; rather, it was more of a social pressure founded on custom
that nonetheless had the same effect.
This lack of a concrete legality in the
discrimination meant that at any given time during this period, it was
‘possible’ for a woman to attain self-sufficiency and the amount of influence
social expectation deemed outside of her, each by polite society.
It was possible,
but only possible in the sense of one individual thrashing against a system
that was rushing them in the opposite direction, a situation that the government
seemed to decide required some form of assistance, primarily in the form of affirmative action and policy goals the act[5]
lays out in parts 4 and 5.
It is in terms of this possibility that this article conceives of returning to
a viable position in an economic system geared towards accumulating wealth
from a position of already possessing it as ours is.
While it is
certainly possible for the poorest of individuals to attain the highest levels
of financial success, this does not change the overwhelming trend and direction
in which the system leans are for those who already have money to make more of
by virtue of having more chances to do so without the cost of failure being
their very livelihood.
Thus, any legal framework that would see the government fulfil its obligations
under the social contract would also have to be characterised by the offsetting
of this ‘rich get richer’ current of the economic model, much as anti-gender
discrimination legislation seeks to offset that cultural current.
Once characterised by this understanding of an entitlement-based and anti-discrimination approach,
a hypothetical specific legal framework can then address the actual material needs
and security from precarity by those two general guidelines, respectively.
This legal framework can take many can
take several forms based on the example of social security policies from
various jurisdictions, with the suggestions here being by no means exhaustive.
A parallel to the community eccentric, decentralised model of management used
by the community development fund, but with legislative guidelines on the use
of these funds instead geared towards every community establishing initiatives
like homeless shelters and food stamps systems, that is to say, with as low requirements as possible for qualification and benefit.
A dedicated piece of social security legislation, to serve the function of
establishing standards and regulations aimed towards material stability, such
as a universal basic income matched to the current economic landscape.
Both of the above would also ideally be facilitated by the inclusion of
economic, social, and cultural rights among those guaranteed constitutionally.
Conclusion
In conclusion, the
current gap that exists in the social contract and its fulfilment arises out of
the divide between the landscapes within which the traditional contract of the
current world operates. More than just physical violence and harm, the current
world is characterized by a degree of economic precarity that overshadows all
others, in which the trajectory of one’s life is made fragile by a myriad of
factors outside of any individual’s control, from the state of global markets
to the demand of the career path that was viable when one was pursuing their
education. The role of the social contract and the law as its means of
enforcement has been and should be today in the service of being the line
between the vulnerable and this precarity, whatever form it may take.
BIBLIOGRAPHY
Statute
The Gender Equity and Equality Act no 22 of 2015
Case law
Mwanza and another vs the Attorney General (appeal 153 of 2016) [2019] ZMSC
Books
Becker, G. S. (1993) Human capital: A theoretical and empirical analysis. University of Chicago Press
Raymond Wacks, Understanding jurisprudence: an introduction to legal theory Barr, N. The Economics of the Welfare State. 5th ed. Oxford: Oxford University Press
Journal articles
David G. Richie, Contributions to the history of social contract theory, political science quarterly vol 6 no 4 p 656-67 Oxford University Press
[1] Raymond Wacks, Understanding
jurisprudence: an introduction to legal theory
[2] Mwanza and another vs the Attorney General
(appeal 153 of 2016) [2019] ZMSC
[3] Becker, G. S. (1993) Human capital: A
theoretical and empirical analysis. University of Chicago Press
[4]Barr,
N. The Economics of the Welfare State. 5th ed. Oxford: Oxford
University Press
[5] The Gender Equity and Equality Act no 22
of 2015
