Is the Social Contract Still Relevant in Law Today?
Societies have functioned for centuries with the law as their backbone. The social contract is the principle that makes us take our rights for granted and obscures how the law interacts with the powerless in society.
Our relationship with the law has evolved before adopting its current state. Today, it may be posited that nobody is above the law or that the law should not bend to the whims of politics - that it is concrete and coherent. These ideas have limitations.
During the European Enlightenment period, when the giants of political philosophy began theorising that citizens should hand over all control to the state in exchange for the promise of law and order, they emphasised the ‘common sense’ of the theory. Thomas Hobbes envisioned a ‘state of nature’ as a period without government, dominated by immorality, and the constant condition of “war of everyone against everyone”. The logical solution, then, was for individuals to surrender their autonomy to a strong Leviathan ruler that would legally dominate (and protect) the masses, thus entering a ‘social contract’.
What if the ‘common sense’ of Hobbes, Locke and Rousseau is no longer relevant? What if questions of justice, as initially considered, are no longer relevant in our increasingly borderless world? In an essay for The Nation in 1966, James Baldwin wrote, “I can’t believe what you say… because I see what you do.”
Social contract theory stems from several assumptions. Namely, that all citizens are equal, free, and capable of consenting to a government to rule over them. An example of this may be engaging with elections to consent to a representative to govern on our behalf. Critical legal scholars, however, remind us that historically, there have been systematic exclusions of racial minorities, women, and other marginalised groups from accessing these rights. As early as Ancient Greece, we witnessed the state call itself democratic (i.e. run or determined by the people) while legalising slavery for racialised minorities and considering women as non-citizens. These ideologies were put on a pedestal and emulated throughout Europe. In Britain, men without property and women did not have the right to vote until 1918. These exclusions shed light on how the social contract is applied selectively, at the behest of the state, where citizens can be easily disregarded and ‘consent’ to government becomes questionable. Today, similar questions can be raised about the lack of rights of prisoners to vote. We can also draw on the marginalisation of racial minorities here. In both the UK and the US, racial minorities are massively overrepresented in prison populations compared to the percentage they make up in society. While some argue that citizens breaking the social contract should remove access to their rights, we can equally problematise what happens when the state breaches the social contract - a question less frequently addressed.
A second assumption made by social contract theorists is that the state will act in the interests of the citizen, or the “subject”, as it was known in Britain before 1949. Imperialism provides a valuable case study for understanding the application of the social contract because of how empires subsumed their colonies into the metropole’s government, turning colonised people into ‘colonial subjects’ of the metropole, and how they changed the colonies’ legal codes and replaced them with European systems supposedly built around liberal philosophies, like the social contract. As critical legal scholar Ntina Tzouvala summarises, “The (Western) state was elevated into the only conceivable source of international legality.” In the Indian subcontinent, for instance, the British cemented their rule into the ‘British Raj’ following the 1857 rebellion by introducing a new penal code, as well as codes of civil and criminal procedure based on English law. Naturally, the exclusionary ideologies that existed in Europe were taken to the colonies and turned extreme. If Europeans could be excluded from the social contract in their societies in Europe, then racialised people in the colonies could be brutalised, enslaved, and forced into submission even if they were also “subjects” of the same king. It follows that colonial subjects had no right to vote or have their views represented nor protected by the imperial entity, but in return, they could be taxed and exploited, with the state certainly not acting in their interest.
Today, the systems set up under colonial rule continue to exert their influence over formerly colonised states, though the methods look different under the guise of international law and globalisation, raising new questions about the role of the social contract based on the state and its citizens. The trade routes and communications systems developed over 500 years of imperialism were not cut off but rather ‘modernised’, forging the phenomenon of globalisation where new actors such as the corporation and non-state actors arguably play a larger role. In one example, Big Tech companies are wreaking havoc across the Global South by entering digital markets where local companies are considerably weakened, and this behaviour is enabled by laws that are meant to protect the state’s economy. States are pressured to enter globalised, free markets by institutions like the IMF and the WTO, which themselves are products of the colonial period and seek to govern the international legal and economic spheres. As far as the social contract is concerned, Third World states cannot protect their citizens while their rules are created by other states and non-state organisations. The social contract’s reliance on the state and its citizens as a binding relationship neglects this history.
In this sense, to doubt social contract theory is to doubt the law as we currently understand it. Social contract theory is not simply outdated; it is insufficient to address the problems that affect real people, and it is a poor excuse used to ignore the struggles of those without power. By reflecting on the evolution of the law and its relation to power and the powerless, we can see what a belief in the social contract blinds us to.
By Mariam Khalaf-Nasr-Torres
