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The Social Contract

In Ideology, Law And Order on September 29, 2010 at 12:02 am

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

From a young age, we are taught that breaking the law is wrong. This becomes a broad principle, and generally goes unchallenged from cradle to grave. We may break the occasional speed limit, or drive after we’ve had enough alcohol to push us just over the limit, or some other minor misdemeanour, but we broadly accept that undermining the spirit of a law is a wrong act. But some, the religious and those with deep-seated political convictions, chose to break the law, and claim to be acting morally when doing so. This to me invites further examination.

One of the most ancient arguments for obeying the law is found in Plato’s Crito. The main characters are Socrates, who has been condemned to death on an unreasonable charge, and his friend Crito, who has sufficient wealth to get him away from Athens, and so avoid the penalty. Despite the many practical arguments advanced by Crito (chiefly, who will look after your children?), Socrates recounts a dream he had, where the embodied laws of Athens dissuaded him from fleeing. They asked him if he had ever opposed the death penalty and had it changed, or, if he had not been able to have it changed, left for another country. Socrates replied that he had never objected to the law since he thought it to be just; consequently, the Laws argued, he ought to stay and fulfil the just conditions of the law. And so Socrates did.

This is the social contract model of law; namely, that we make our laws according to what our society perceives to be justice, and consequently, as members of our society, it is incumbent upon us to obey them. We are perfectly free to oppose the laws within our society, and to leave our society should we find our situation intolerable. This is a very neat model for describing most Western democracies and Ancient Greek city-states. It also allows us wiggle-room; we may argue that society does not perceive it unjust if we were to drive after having had 2 pints, but completely in control. While we may have broken the letter of the law, it is not against the spirit of the law, and society does not condemn us for it.

However, this model of law – very widely accepted – creates a tension within those who hold strongly to ideology. The religious (certainly in the Abrahamic faiths) argue that a set of instructions have been handed down from God, and these form a higher legal code, which they must prefer over society’s. Most of the time, this does not present much of a problem. Strict Jews observe Kosher requirements pertaining to food, and since there are very few laws about what one may eat, and Kosher does not require non-Jews to observe it, strict Jews observe Kosher satisfying their own and society’s law. Strict Catholics observe a law against contraceptive devices. There is no law requiring them to wear them, and so they don’t, and fulfill their obligations to religious and societal law.

However, there are some religious observances that grate against society. Within the last year, a Christian B&B owner lost a court appeal which arose because she refused to allow two practising homosexuals to share a single bedroom. Here, the Christian believed that there was some higher law that trumped the law of the state. Again, some Muslims, and even the Archbishop of Canterbury, have suggested that parts of Shari’a – the Islamic Law – be integrated alongside or as part of UK law. For some Muslims, the observance of this law is more important, and they would seek a framework within the state to enable that to happen. A similar solution currently exists for elements of Jewish Rabbinical Law.

This is also true for non-religious causes. A not insubstantial number of people with-held tax from the UK government because they opposed the Iraq war. These groups, for ideological or theological reasons, hold that to obey the law is wrong in the instance where it is trumped by a higher law – God, or International Law, or somesuch other thing.

Here, though, the law still operates on a social contract model, but with a different society. Augustine so eloquently argues that a Christian considers himself first a citizen of heaven, and then a citizen of his country. Consequently, he obeys the laws set by the Kingdom of Heaven above those set by the United Kingdom. Some objectors to the Iraq war considered themselves first citizens of the world, and so tried to enforce the judgement – as they perceived it – of international law. This is a conflict of communities, and this is perhaps why the British public react quite strongly against the idea of a separate legal system; if they don’t obey our laws, they don’t want to be part of our community.

This is why the Pope’s visit was greeted with hostility from some quarters. The Pope believes that women should not be in leadership, nor people who have homosexual intercourse, nor who use condoms. This jars against our equality legislation. What is actually going on here is a tension between a ‘Catholic’ community and a ‘British’ community, and some people find themselves in both. In fact, there is a tension between all communities (even ‘Scottish’ and ‘British’). Some, like the tension between ‘fundamentalist Islam’ and ‘Americanism’, are extremely pronounced, and others, like the tension between ‘French’ and ‘European’, are more muted. It is a tension that all, considering themselves at once to hold a theological or political view distinct from their nationhood, must deal with and come to some resolution.

What is further interesting here is that quintessentially ‘British’ things that occur point away from this social contract model of law. For example, in our courts, we swear on some holy book, pointing towards the fact that we do not believe the social contract is sufficiently binding. Our parliament offers prayers at the start of each day’s business, suggesting that they are not there to uphold a social contract with the people, but do something higher. We praise the acts of people such as Ghandi; people who broke the law – albeit in a non-violent manner – in order to force a certain set of circumstances. We accept the presence of Gerry Adams and Martin McGuiness in the Northern Ireland assembly, even though they allegedly advocated violence against the state of which they were citizens. It does not seem the UK has much faith in its social contract.

This is ultimately because, as is so often tritely noted by pro-immigration politicians, Britain has come into contact with a huge number of other social contracts in its history. A great number of varied communities have contributed to the British social contract. To the indigenous Celtic social contract, there are added Greek and Roman influences from the Roman Empire, and Germanic and Viking influences acquired during the dark ages. A fresh wave of Catholic influence swept in with the Norman Conquest, and a series of Protestant/Rationalist inspired influences were amalgamated in the English Civil War and Glorious Revolution. As the Empire expanded, immigrants from the colonies brought again different perspectives on the UK’s social contract, and other social contracts with which to compare it. Our social contract is a contract that has had almost every article amended, every clause scrutinised, and has been almost completely re-ordered. With all this change – which broadly improves the contract – it should come as no surprise that we point to a higher law in our rituals (after all this flux, it is clear that we have little idea about the ‘true’ law (assuming such a thing to exist)) yet in this modern age, become outraged when someone proposes a higher social contract than the one we have with the state (someone is trying to change this contract we’ve spent years putting together). It is this phenomenon that makes most revolutions in the Anglo-Saxon world ‘conservative revolutions’ such as the English Civil War, rather than ‘progressive revolutions’ – most all ‘progressive’ changes have come gradually without tumultuous upheaval.

Where does this leave civil disobedience? Paul exhorts Christians to do what is right (by God’s Law), and accept any punishment that comes from the earthly authorities for doing so. This shows a very advanced appreciation of the social contract. If the contract speaks of ‘not doing X, otherwise punishment Y’, and God insists that I do X, I can honour my divine contract and my social contract by doing X and receiving punishment Y. For Socrates, and for Jesus of Nazareth, this is exactly what they did, and punishment Y was death.

The big question unanswered here is what one ought to do if the laws cease to exist in the form of social contract, say, in a despotic regime. Ought one still to obey the laws, or overthrow the system? A complex response might be to say that a despot only keeps power with a certain implicit (possibly coerced) consent of the society, and so a rather forced social contract exists. If it is impossible to oppose or leave (two options that are abundantly open to us in the Western Democracies), then I suspect that a social contract does not exist, and all the arguments presented above are void. Ultimately, by their nature, social contracts are voluntary; they will not work if we will them not to work. This perhaps is a twee response to those facing persecution for their political or theological views, yet if history is a witness to anything, it is that social contracts can radically alter their composition.

I will briefly discuss whether a written constitution represents a social contract. It does, to an extent. There are lots of things that cannot be encapsulated within written documents, and so a constitution will never quite approach a social contract in the abstract form we have been discussing here. Undoubtedly it includes many elements of  a social contract, and is sometimes a useful framework for helping people engage with the idea of social contract. Interestingly though, few constitutions now, or even international laws, are contracts. If we look back to the earliest law codes – those of Hammurabi and Moses – they are written as contracts: between king and denizen; between God and covenant people. This is clearly an ancient hang up in our thinking – we still abstract law as basically a contract, but we have got so caught up in ourselves and our laws that we flounce about with big notions like ‘freedom’ and ‘equality’, when all that’s really happened is we have agreed as a society that these things should be in our contract.

Whether you accept that ‘freedom’ and ‘equality’ are just terms of a contract – that may be written in or out, and even defined, as it suits society – defines whether or not, like me, you think this whole contract nonsense is tripe.

You see, I don’t believe that ‘freedom’ or ‘equality’ or ‘what is right’ are relative terms, as the social contract model invites us to accept. This is partly because I hold a relatively rigid set of theological views, but, on the other hand, it does not strike me that truth and morality should alter from person to person, if they can be said to exist at all. Forgive me for sounding philosophical here, but the point is an important one, and should be coaxed out. If we say that our laws, and, for that matter, our social customs, are merely based on the consensus of society, we lose our ability to condemn what is wrong in the legal systems of other countries, such as the presumption of guilt, random executions, torture, and whatever else we may wish to add to that list.

The social contract model is a useful one, but it can lead to all sorts of unjustifiable and undesirable consequences if it is allowed free rein, independent of a non-relativistic morality. The social contract of some really primitive societies boils down to punishment for crimes being banishment or death; which I will be so bold as to say is immoral. Justice, the law, does depend on morality to some degree. For sure, a lot of customs, even some laws, such as what not to say before the watershed on TV, are entirely societal things. But for the most part, laws depend on some greater morality. This is why our parliamentarians pray, this is why we swear on our holy books in court; we have to underpin our social contract with a belief, however faint, in an objective morality, that somehow matters. After all, if it doesn’t, why do we become so tetchy about running religious legal systems in parallel to the state’s? Why do we refuse to acknowledge a marriage agreement held bewteen three or more people? In fact, why do anything? – other than that society has agreed it shall be so, and it may change its views on a whim.

We do not live merely under a social contract; or if we do, it is not desirable that we should realise this. It is much better, to my mind, to believe in morality and say it underpins our social contract. Otherwise, we can justify some truly atrocious things on the grounds of our social contract. Plenty of Germans had scope to leave Nazi Germany, or protest the Holocaust (it would likely have been effective; a Nazi campaign of forced euthanasing of disabled children was stopped due to public outcry), but they did not. If there is no morality propping up the social contract, we cannot fault Hitler for his actions. If we arrive at such a place, the outlook for humanity is grim indeed.

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