Marikana, the Rule of Law and Revolution

Social Contract theory has long been at the core of philosophical endeavours to understand and propose a theory of social collectivism and the power structures that result from our efforts to formalise communal existence. Socrates uses something quite like a social contract argument to explain to Crito why he must remain in prison and accept the death penalty (Friend, 2015), but social contract theory as we understand it today, is a modern expression of a philosophic concept which was first fully explored by 17^th century English philosopher, Thomas Hobbes. 

Some have argued that modern political discussions of social contract may even originate before Hobbes and can be traced back to the Italian Marsilius of Padua (1270-1343) who fought against the supremacy of the church in other than spiritual matters. He developed the idea that the people are the source of all political power and government is by mandate of the people, and with their consent. (FRIEDMANN, 1999). 

However,   Hobbes is credited with the first modern intellectual development of a “method of justifying political principles or arrangements by appeal to the agreement that would be made among suitably situated rational, free, and equal persons”, known as the social contract. Hobbes is best remembered in this context for his conclusions, drawn from his argument for a social contract, “that we ought to submit to the authority of an absolute—undivided and unlimited—sovereign power” or Monarchy. (Lloyd, Sharon A. and Sreedhar, Susanne,, 2014)

Hobbes was followed by John Locke who differed with Hobbes on key aspects and “defended the claim that men are by nature free and equal against claims that God had made all people naturally subject to a monarch. He argued that people have rights, such as the right to life, liberty, and property that have a foundation independent of the laws of any particular society.” (Tuckness, 2012)

What is Social Contract Theory?

The modern social contract is premised on the idea that ones` moral obligations to society are derived from an “act of imagination” in which an agreement between individuals and groups in society either between each other or with the state, which grants the state the right to act as the absolute authority within society, to regulate and control the actions of individuals and society in protection of the greater collective good.

For Hobbes, the Social Contract was not based on a moral imperative, but rather on a naturalistic or utilitarian ethic in which humans seek peace in order to avoid war, but that by agreeing to the social contract, society was acknowledging the sovereignty of the state, namely the monarch, and thereby unconditionally surrendering the right to self-govern. “According to Hobbes's analysis, “all but absolute governments are systematically prone to dissolution into civil war, people ought to submit themselves to an absolute political authority” (Lloyd, Sharon A. and Sreedhar, Susanne,, 2014)

For Locke, the social contract is derived not from a state of war, but from a potential state of peace. His analysis begins with “individuals in a state of nature where they are not subject to a common legitimate authority with the power to legislate or adjudicate disputes” (Tuckness, 2012). Locke sees the social contract as having two stages, namely a social stage in which unanimous consent is obtained from society and the second stage in which political consent is obtained for a common authority rather than an absolute monarch. 

The Social Contract, Consent and Governance

The social contract theory is developed as both a bridge from the state of nature to a common authority and as a balance between the primacies of the individual against the primacy of the state.

Arriving at different interpretations of the state of nature, Hobbes and Locke consequently propose different outcomes to the agreed need for a social contract.

Hobbes in  line with his imagining of the state of nature as a place of mutual distrust and a state of war in which the absolute freedom and equality is worked out in a pervasive and continual threat to security, sees the social contract as being premised on the utilitarian drive of “men” to seek pleasure and avoid pain. 

Thus Hobbes argues that when people mutually covenant each to the others to obey a common authority; they have established what Hobbes calls “sovereignty by institution” (Lloyd, Sharon A. and Sreedhar, Susanne,, 2014).This covenant can be made with ones fellows or with a conqueror and are both equally legitimate forms of government according to Hobbes. Hobbes thus posits that “Political legitimacy depends not on how a government came to power, but only on whether it can effectively protect those who have consented to obey it; political obligation ends when protection cease” (Lloyd, Sharon A. and Sreedhar, Susanne,, 2014).

Locke on the other hand sees the social contract specifically as one of consent, not out of fear as Hobbes would have it, but more importantly to protect private property. “"The great and chief end, therefore, of men’s uniting into common-wealths, and putting themselves under government, is the preservation of their property” (ENGLE, 2011). 

Locke argues for example that by merely inheriting property that one consents to the jurisdiction of the commonwealth over that property (Tuckness, 2012).

The state thus has a crucial and central role in the protection of private property according to Locke and Locke makes a separation within the social contract stage which aims to not only separate the political from the individual but also to place the individual as the primary source of sovereignty.

Locke rejects the absolutism of monarchy in favour of the sovereignty of the individual and instead argues for a government which is established by unanimous consent. Locke states in the Two Treatises that the power of the Government is limited to the public good. It is a power that hath “no other end but preservation” and therefore cannot justify killing, enslaving, or plundering the citizens. (Tuckness, 2012)

Tuckness claims that Locke posits that “legitimate government is based on the idea of separation of powers. First and foremost of these is the legislative power” and suggests that Locke describes the legislative power as supreme in having ultimate authority over “how the force for the commonwealth shall be employed” (Tuckness, 2012).

Locke`s Treatise is also significant and different to the Hobbesian view of the social contract in that he affirms that the community remains the supreme power throughout and that they have the right to “remove or alter” the legislative power. Locke thus legitimises revolution and describes the occasions when such a reality might be legitimately realised. Among the crimes that may trigger such an event is when the rule of law is ignored, representatives of the people are prevented from assembling, if the mechanisms of elections are altered without popular consent or if the people are handed over to a foreign power (Tuckness, 2012). Thus Locke understands the delegation of authority under a constitution to be conditional.

Marikana, the Rule of Law and Revolution

In using Locke as the basis for a discussion on the legitimacy of revolution, I have hoped to establish the bare minimum agreement on liberal principles that underpin modern liberal democracies and to avoid the inevitable accusations of "ultra - left" ideological bias.

From these liberal prescriptions it is evident that conditions which undermine the basic premises of a peoples contract with its state may be advanced as legitimate reasons for the people to rise up in a revolutionary defense of their rights.

Accepting that South Africa is founded on an interpretation of a modern liberal democracy it is then not unrealistic for society to question its social contract with the state if the state is found to have subverted that contract, through its blatant subversion of the rule of law as it did recently in the Omar Al Bashir case, or in the killing of mineworkers in Marikana, despite the semblance of a juridical process. Others have by now already exposed the inconsistencies of the findings of the Farlam Commission, but more importantly, the findings of the judicial process rings hollow in the face of the absence of Justice for the victims and their families. 

The argument is often advanced that as a democratic state the only way for that state to be deposed is through democratic elections. But this narrow understanding of social contract does not take into account the Zanufication of a State. Where the political, military or economic elite usurp the instruments of the state in order to maintain the face of a democracy. Al Bashir, Mubarack, Sadam Hussein, Kim Jong-un and Robert Mugabe have all maintained that their legitimacy derives from such a narrow reading of the modern state.

Blade Nzimande of the South African Communist Party for example argues that "At the heart of our concern is that we must be careful...[that] we must not define our constitutional state as standing in contradiction to majority rule." 

While democracy and majority rule is an important consideration in the constitution - that is the make up, of the state, it is by no means the only consideration as Locke argued so many years ago, and which continues to underpin our own constitutional democracy. 

The majority, however this majority is obtained, does not automatically outweigh the rights of individuals and society to expect that the state acts within the rule of law, does not grant it an automatic right, and therefore cannot justify killing, enslaving, or plundering the citizens.

The South African State and the ruling Party continues to hold on to its electoral majority as the sine qua non of its claim to legitimacy while all around it, it continues to dismantle the social contract. Soon even this crutch, will come under increasing pressure.

South Africa, under the current crop of leaders are skating very close to the conditions that may legitimise a revolutionary revolt. 

The anger of the young people faced with only poverty, misery and increasingly violent responses from the state cannot be ignored Ad infinitum.

The creeping insistence by the state to demean the Judiciary, treat the Legislature as its rubber stamp and the growing resort to Police State responses to civil society, are warning signs of conditions for revolution.

We fail to heed them at our peril.