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JEAN-JACQUES ROUSSEAU’S THEORY OF LAW AND
CIVIL STATE AND ITS RELEVANCE TO NIGERIAN
DEMOCRACY
BY
EMERIBE, JUSTUS ONYINYECHI
REG. NO: PG/MA/12/63451
DEPARTMENT OF PHILOSOPHY
UNIVERSITY OF NIGERIA, NSUKKA
JULY, 2016
JEAN-JACQUES ROUSSEAU’S THEORY OF LAW AND CIVIL
STATE AND ITS RELEVANCE TO NIGERIAN DEMOCRACY
A DISSERTATION PRESENTED TO THE DEPARTMENT OF
PHILOSOPHY, UNIVERSITY OF NIGERIA, NSUKKA IN
PARTIAL FUFILMENT OF THE REQUIREMENTS OF THE
AWARD OF MASTER OF ARTS (MA) DEGREE IN
PHILOSOPHY
BY
EMERIBE, JUSTUS ONYINYECHI
REG. NO: PG/MA/12/63451
REV. FR. DR. M. C. CHUKWUELOBE
(SUPERVISOR)
JULY, 2016
CERTIFICATION
Emeribe Justus O, a Master of Arts student in the Department of Philosophy, Faculty
of the Social Sciences, University of Nigeria, Nsukka, with Registration Number:
PG/MA/12/63451, has satisfactorily completed the requirements (course work and
dissertation), for the award of Master of Arts (MA) Degree in Philosophy. The
dissertation is original and has not been submitted in part or in full for any other
degree of this or any other university.
----------------------------------------Rev. FR. Dr. M. C. Chukwuelobe
ii
APPROVAL PAGE
This dissertation has been approved for the Department of Philosophy, University of
Nigeria, Nsukka in partial fulfilment of the award of Master of Arts (MA) Degree in
Philosophy.
By
-----------------------------------------REV. FR. DR. M. C. CHUKWUELOBE
(SUPERVISOR)
----------------------------------------------INTERNAL EXAMINER
------------------------------------------PROF. EGBEKE AJA
(HEAD OF DEPARTMENT)
-----------------------------------------------EXTERNAL EXAMINER
------------------------------------------------------------PROF. I. A. Madu
(DEAN, FACULTY OF THE SOCIAL SCIENCES)
iii
DEDICATION
This work is dedicated to God Almighty, the originator of law and state and to all the
law abiding citizens of this great country Nigeria.
iv
ACKNOWLEGEMENTS
I wish to cease this opportunity to appreciate all who in one way or the other
contributed in making this work a reality. I remain grateful to Rev. Fr. Dr. M. C.
Chukwuelobe, my supervisor, for his meticulous and painstaking supervision. I am
grateful to all my lecturers amongst who are Prof. Egbeke Aja, Rev. Fr. Dr. F. O. C.
Njoku, Dr. A. C. Areji, Dr. J. O. Eneh, Dr. C. K. C Ani, Dr. M. C. Anyaehie, Rev. Fr.
Prof. B. O. Eboh, Prof. J. C. A. Agbakoba, Dr. C. I. Asogwa, Rev. Fr. Dr. Asiegbu,
Dr. E. Omeh, Dr. N. U. Asogwa and my other lecturers I say thanks for your
encouragements, wonderful advice, and assistance towards the success of this work.
To my mum Mrs Rose Emeribe, my siblings especially, Mr Felix & his family, Mr
Isdore, Miss Assumpta and Miss Genevive, I say may God meet you at your various
points of needs for being beside me financially, morally and otherwise. My immense
gratitude goes to my uncles, Chief Steve Onu, Eze P. I. P. Onu and his wife - Ugoeze
R. Onu, for the concern, care and love they showed me throughout the course of this
programme.
In the same vein, my unreserved thank goes to my cherished brother and friend Dr.
Anthony Aja for his meritorious contribution and inspiring ideas. To my vibrant and
lovely colleagues Rev. Fr. Fidelis Yakunat,Ojimba Anthony, Udenwagu Lilian C,
Atabor Augustine, Ugwuozo Ebube, Rahaman M. Musa, Udom Martins, Mrs Uju and
others, I thank you for your ideas, encouragements and love which took me thus far in
this journey. Indeed, you people are great and worthy colleagues. May God who
knows how best to reward men and women of good will bless you all.
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TABLE OF CONTENT
Title Page
Certification
ii
Approval Page
iii
Dedication
iv
Acknowledgement
v
Table of Content
vi
Abstract
viii
CHAPTER ONE: INTRODUCTION
1
1.1 Background of the study
1
1.2 Statement of the problem
4
1.3 Thesis of the Study
4
1.4 Purpose of the study
4
1.5 Significance of the study
5
1.6 Scope of the study
5
1.7 Research methodology
5
CHAPTER TWO: LITERATURE REVIEW
7
CHAPTER THREE: ROUSSEAU’S THEORY ON LAW
AND CIVIL STATE
32
3.0 A Brief Bio-data of Rousseau
32
3.1 The State of Nature in Rousseau
35
3.2 The Social Contract
37
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3.3 Rousseau on Civil State
40
3.4 Rousseau on Law
47
3.5 The Legislator and the People
50
3.6 The Right to Life and Death
54
CHAPTER FOUR: A JUXTAPOSITION OF ROUSSEAU’S CONCEPT OF
LAW AND CIVIL STATE AND NIGERIAN DEMOCRACY
60
4.1 Understanding democracy in Nigeria’s Civil Society
60
4.2 Common Good: The End of a Political Society
65
4.3 Constitution-Making in Nigeria
69
4.4 The Leadership Question
73
4.5 Corruption
79
4.6 Human Rights and Social Justice
88
CHAPTER FIVE: EVALUATION AND CONCLUSION
101
5.1 Evaluation of Rousseau’s Concept of Law and Civil State
101
5.2 Conclusion
107
Bibliography
110
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ABSTRACT
Rousseau’s ideas of law and civil state are his efforts to improve the government processes in
France during the 18th century enlightenment era. The situation of France at this time was not
palatable as there were social injustices and inequalities which characterized the state of
nature on ground. Among the three social classes that existed in France at that time, it was
the third estate comprising the third class citizens with less land that paid the highest taxes.
The first and second estates consisting of the first and second class citizens were exempted
from it. This boils down to the state of nature idea of the strong getting stronger and the weak
getting weaker. This gave rise to all the evils that people perpetrated on one another in this
state. Although Rousseau formulated his theory after reading and analyzing those of Hobbes
and Locke, the scope of his project was not significantly different from theirs’. He understood
society to be an invention, and he attempted to explain the nature of human beings by
stripping them of all of the accidental qualities brought about by socialization. Thus,
understanding human nature amounts to understanding what humans are like in a pure state of
nature, unlike Aristotle’s classical view which claimed that the state of civil society was the
natural human state. Furthermore, Rousseau acknowledged that self-preservation was one
principle of motivation for human actions, but not the only principle unlike Hobbes. He
concludes that self-preservation or generally self-interest, is only one of the two principles of
the human soul. The second principle is pity; it is an innate repugnance to see his fellow
suffer. Unlike other creatures Rousseau believes that human beings have reason, although
such is not yet developed in the state of nature. It is this faculty that makes the long transition
from the state of nature to the civil society possible. In the same vein, a proper application of
this Rousseau’s theory of law and civil state can also serve as a conceptual tool for
improving on Nigerian democracy.
viii
CHAPTER ONE
INTRODUCTION
1.1 Background of the Study
The choice of this topic was motivated by the way Nigerian system of government has
been run since the return of democratic rule in the country in 1999. Presently,
Nigerian system of government lacks the true character which depicts what
democracy is all about. This of course is not different from the situation in prerevolutionary France during the time of Rousseau that contributed to his idea of the
state of nature. Suffice to note that during this time in France the state was bankrupted
due to mismanagement of the economy. This economic crisis was as a result of the
overwhelming costs incurred by fighting two major wars – the seven years’ war and
the American Revolutionary war. There was also severe amount of injustice culminating in
social inequality in the tax system. Here the third estate with the less land was made to pay
the highest tax while the first and second estates that had more lands paid little or none at all.
Because of this, there was “an insistent demand” for reform of these abuses of privilege, for
an equitable means of taxation and for improved government processes. In fact, it was
Rousseau’s reaction in the face of these ugly situations that is believed to have inspired the
1789 French Revolution. For him, perpetual peace can only be achieved at the price of
revolution. Now tracing the political history of our country Nigeria since independence
in 1960 it is clear that the first democratic government ushered in an independent
Nigeria was cut short by a coup in 1966, a counter coup in 1967, civil war from 1967
to 1970, military rule from 1970 when the civil war ended until another coup in 1975
and still another unsuccessful one in 1976. The military rule continued in 1979 when
a successful political transition ushered in the second republic, which became a
democratic process that was known more for its prodigality than for governance until
1
it was terminated in 1983 by yet another military coup and another in 1985 with the
new military junta ruling from 1985 to 1993. This regime thwarted the political rights
of citizens who had elected a democratic president by annulling the elections. After
this, there was an installation of an interim national government that lasted for only
three months following another heinous military intervention until 1998 when it was
cut short by divine providence and ushered in yet another military ruler who now
successfully conducted a transition that led to the 1999 democratic governance. It is
now sixteen years of uninterrupted democratic governance in the country since its
return in 1999, yet there are still the ugly incidents of maladministration,
embezzlement of public funds, fraud, blackmailing, killing, injustice and social
inequality among others, that characterized the former military regimes in the country,
even though it was these that led to the clarion calls by well-meaning Nigerians for a
democratic system of government in the country. However, having come in contact
with Rousseau’s ideas of law and civil state in the course of my study, I believe that
his ideas will go a long way in helping to strengthen Nigerian democracy and to
address some of her problems.
Now the issue of law and civil state in Rousseau’s political philosophy was brought
about to salvage the condition of the state of nature which was believed to be inimical
to human life. Man’s original state was lawless and as such inimical for men’s
peaceful co-existence. Man by nature is self-centred and that is why he directs every
attention to himself, to care and maintain himself no matter the cost. According to
Rousseau, man’s first sentiment was that of his own existence; his first concern was
that of his preservation.1 It is this natural crave in man to preserve himself even at the
expense of others in the state of nature that led to the unhealthy competitions which
2
abound in this state giving rise to envy, injustice, avarice, killing, manipulation,
hatred among others. In the state of nature man lives in perpetual fear of what the next
moment will bring, owing to its unstable nature. To tackle these problems, Rousseau
thought of the need to form an association which will defend and protect with the
whole common force the person and goods of each associate. For him, this should be
in a way that each while uniting himself with all, may still obey himself alone.2 This
is made possible with the idea of the social contract which is based on law and
culminated in the general will. Thus people can now willingly adjust their conduct to
harmonize with the legitimate freedom of others.
Talking about the democratic republic of Nigeria today, these questions are pertinent:
Do we really know what democracy is all about? Is our country Nigeria qualified to
answer a democratic society? Are we practicing the rule of law? Is Nigerian rule of
law applied to the leaders and the led? Are the laws made to guide a democratic or
political society like Nigeria reflect the will of the citizens (the general will) or the
will of some selected few? Do our elected or selected leaders represent the entire
citizens or themselves? Although our country is said to be practicing a democratic
system of government, facts on ground show that we are far away from what a true
democracy stands for. Instead, what we practice could better be described as false
democracy (pseudo-democracy). It is a democracy of displacing, misplacing and
replacing of the citizens instead of representing them. Nigeria presently is lacking the
qualities upon which a true democracy is predicated. Hence, we shall adopt
Rousseau’s ideas of law and civil state where both the leaders and the led abide by the
general will, to serve as a conceptual tool for uplifting our present system of
government.
3
1.2 Statement of the Problem
Rousseau is of the view that there is a basic agreement which constitutes a group of
people, an agreement fundamental to everybody in the civil society. It leads to the
transition from the state of nature to the civil state. It is unfortunate that this
fundamental and constitutive agreement which led to the transition from the state of
nature to the civil society is lacking in our country today despite the purported
practicing of democratic system of government. The issue is that democracy which is
built on freedom and equality and which suppose to be the mouth piece of the
ordinary citizens has now taken to be no different from autocratic or authoritarian
system of government in Nigeria. This gives rise to social inequality, social injustice,
insecurity and the likes leading to disagreement among the leaders and the led and
such is not healthy in a civil society like Nigeria. The thrust of this work therefore, is
to ascertain to what extent can this Rousseau’s view impacts positively on democracy
in Nigeria, considering the pitiable state of the country since returning to democratic
system of government in 1999.
1.3 Thesis of the Study
This study intends to establish that if Rousseau’s principles of law and civil state are
applied to Nigeria’s democracy, it will go a long way in solving the problem of
governance in the country and make the nation a better place for people to live.
1.4 Purpose of the Study
The purpose of this study is to expose and evaluate Rousseau’s theory of law and civil
state,
4
and to consider its relevance as a conceptual tool for improving on Nigerian
democracy.
1.5 Significance of the Study
This work is significant in many ways. Firstly, it is going to show the strengths and
weaknesses of Rousseau’s notion of law and civil state. Secondly, this study will
expose the deplorable state of Nigerian democracy and make recommendations on
how this situation could be rescued. Thirdly, it is meant to awaken the consciousness
of Nigerians to take up their gauntlets in matters concerning our nation as a political
society. Finally, its powerful insights, analysis and evaluation will serve as reference
points to researchers and future readers.
1.6 Scope of the Study
This work will be limited to Jean-Jacques Rousseau’s ideas of law and civil state and
its relevance to democracy in Nigeria. Also, in the course of this work, we shall
consider the views of some other authors who have written before Rousseau on the
issue of law, civil state and other related issues.
1.7 Research Methodology
Data for this study were sourced from books, journals and articles. The Historical
method was employed to survey and understand the previous conceptions of law and
civil state in the history of philosophy from ancient to modern era. Philosophical
exposition was used to highlight Jean-Jacques Rousseau’s ideas on law, civil state and
other themes relevant to this work in his philosophy. Then, philosophical analysis was
used to consider the strengths and weaknesses of his ideas of law and civil state, and
its relevance to Nigerian democracy.
5
End Notes
1
Jean-Jacques Rousseau, Basic Political Writings of Jean-Jacques Rousseau, trans.
Donald A. Cress (Cambridge: Hackett Publishing Company, 1987), 60.
2
Jean-Jacques Rousseau, The Social Contract, trans. Christopher Betts (New York:
Oxford University Press, 1994), 45-55.
6
CHAPTER TWO
LITERATURE REVIEW
Law and civil State are not new terms or ideas. They have been there throughout the
history of western philosophy, ranging from ancient to contemporary period.
Meanwhile, before considering Rousseau’s theory of law and civil State and its
relevance to democracy in Nigeria, we shall review few related literature based on this
discourse. Here we are looking at how some philosophers across the history of
philosophy have reflected on law and civil State.
In The Republic, Plato’s (428-348) discussion on the State is idealistic. It is built on
his basic theory of ideas. For him, the State (polis) reflects the ideally ordered polity,
which exists in the world of ideas or in the mind. Indeed, while studying justice, Plato
considers the state in relation to the individual. For him, justice which is the subject of
our enquiring is sometimes spoken of as the virtue of an individual, and sometimes as
the virtue of a state. He is of the view that if the state is larger than an individual, then
the quantity of justice is likely to be larger and more easily discernible in the state.
Consequently, in The Republic, he writes: “I propose therefore that we enquire into
the nature of justice and injustice, first as they appear in the state, and secondly in the
individual, proceeding from the greater to the lesser and comparing them.”1 Granted
that he begins with a study of the state, his whole argument is that the state grows out
of the nature of the individual, so that the individual comes logically prior to the state.
According to Plato, the state originates because of people’s economic needs. It comes
into existence because no individual is self-sufficing: we all have many needs. For the
fact that we have many wants, many persons are needed to supply them. One takes a
helper for one purpose and another for another and when these partners and helpers
7
are gathered in one habitation the body of inhabitants is termed a state.2 There is need
for many skills, hence, people should contribute to the state by developing and
working within their natural capacity and gift, with the corresponding virtue required.
Furthermore, based on the needs and aptitudes of the members of the state (polis)
together with its modes and mores, it incorporates three major social classes: the
rulers, the soldiers and the workers. These correspond to the three operative parts of
the soul. The craftsmen or artisans represent the lowest part of the soul, the appetites
or the body (soma). They correspond to the workers who provide the material needs
of the state as its general body with their desire and temperance. They do not have any
political function; however, they are subject to the rulers and the soldiers and can own
wealth and family. The second class is the guardians or soldiers, auxiliaries of the
rulers and they correspond to the spirited element of the soul (thumos). They maintain
order and control the workers, thanks to their aptitudes of fortitude and courage; but
they are also subject to the rulers. The highest class is the rulers; they represent the
rational element of the soul (nous). They are the lovers of wisdom and guided by the
will. With the aptitude of wisdom, they govern the state and must rule it with wisdom;
Plato calls them the Philosopher-Kings. He therefore writes:
Until philosophers are kings, or the kings and princes of this world
have the spirit and power of philosophy, and political greatness and
wisdom meet in one, and those commoner natures who pursue either to
the exclusion of the other are compelled to stand aside, cities will
never have rest from their evils, - no, nor the human race, as I believe,
- and then only will this our state have a possibility of life and behold
the light of day.3
Everyone should be engaged in the area where he can best fit in, if you like, his area
of expertise. Moreover, there is need for every class to fulfil his role efficiently and
not interfering in others. In this way there will be justice in the state, for justice will
8
then be the harmony resulting from each class fulfilling its function properly and
without any interference.
Considering the decline of the ideal state, Plato observes that if the state grows out of
the nature of individual, then it will reflect the kind of people a community will
become. Therefore, the state will reflect the variations in human character. Against
this backdrop, he argues that constitutions cannot come out of stocks and stones. They
must result from the preponderance of certain characters which draw the rest of the
community in their wake. Therefore, if there are five forms of government, there must
be five kinds of mental constitution among individuals. The state is made what it is
based on the law and order that it can command and most importantly the type of
citizens it inhabits. Considering Plato’s political theory, he could be seen as having an
idealist concept of the state. However, taking a closer look at the origin of the state,
which for him comes as a result of mutual needs, one could see that there is a link to
the natural origin of the state. Thus, the state is a natural institution, natural because it
reflects the structure of human nature.
Aristotle (384-322) while considering the origin and nature of the state, sees the state
as the highest form of association, the most sovereign, embracing all others and
therefore aims at the most sovereign of all goods; it is political. He traces its origin
back to its generative components, the family, which comes from the natural pair of
man and woman. In his book, The Politics, Aristotle observes that the family is the
association established by nature for the supply of men’s every day wants. He writes:
“when several families are united, in a single complete community, large enough to
be nearly or quite self-sufficing, the state comes into existence, originating in the bare
9
needs of life, and containing in existence for the sake of a good life.”4 It is the end of
other associations and nature is itself an end. For Aristotle, “it is evident that the state
is a creature of nature, and that man is by nature a political animal.”5 Nature has made
it possible for man to live in the society. No man reasonable enough can say that he
does not need to live in a society. He who is by nature, and not by mere accident is
without a state, is either a bad man or above humanity, he is like the war-mad man
denounced in Homer’s words as tribeless, lawless, and heartless.6
Moreover, not only is humanity by nature destined to live in a state, but the state like
every other community is established for some good. The political society exists to
serve human, to provide the individual with the means and circumstances which will
enable him to meet up with his expectations. Primarily, the family exists to preserve
life. In a similar way, the state comes into existence in the first instance to preserve
life for families and villages. Besides, the state functions to ensure the supreme good
(summum bonum) of humanity – happiness, in its highest form. It exists for the sake
of everyone’s moral and intellectual fulfilment.
Although the state is formed from the coming together of families as earlier observed
but the latter is seen as part of the former which is the whole. Thus, the part is part of
the whole, if the whole is destroyed, the part will have no meaning except in an
equivocal sense, by name, for it is the whole that gives it a stand, a meaning. If an
individual is not fully self-sufficing after separation, he is therefore like a part in
relation to the whole. He notes: “he who is unable to live in society, or who has no
need because he is sufficient for himself, must be either a beast or a god: he is no part
of a State.”7 Therefore, when man is perfected, he is the best of animals, but when
10
separated from law and justice, he is the worst of all. Without virtue he is the most
unholy and the most savage of animals, and the most full of lust and gluttony.
Nevertheless, justice is the bond of men in States. The administration of justice is the
determination of what is just; it is the principle of order in political society.
Aristotle also considered what form of political community is best for those who are
most able to realize their ideal of life. For him, members of a State must either have
all things or nothing in common. However, it is impossible for them not to have
something in common, for constitution is a community, and must at any rate have a
common place. Hence, one city will be in one place, and the citizens are those who
share in that one city. Citizens therefore, are sharers. The question is: to what extent is
the element of sharing to be held? This, Aristotle considers from three angles –
sharing of social life, sharing of political office and sharing of ownership of property.
Talking of sharing based on social life, Aristotle criticizes total sharing (like sharing
of wives based on extreme type of unity) subscribed by Plato which reduces the State
to the status of household. Instead, plurality and variety natural to the State should be
promoted. Secondly, he talks of sharing based on political offices. For him, if the
continuance of offices is not possible always, all should share in governing the State
since all are naturally equal. This brings variety in the offices. Extreme unity defies
the self-sufficing nature and aim of the State. Thus, lesser degree of unity is desirable
to promote self-sufficiency since shared independence generates sense of civil
responsibility. Lastly, concerning the sharing of ownership of property, Aristotle
questions if the citizens of the perfect State should have their possessions in common
or not. He recommends generally, private ownership combined with common use, and
an ungrudging distribution of goods to all citizens. This is based on generosity as
11
against enforced distribution by regulation. Having considered all these, Aristotle
gives a strict definition of a citizen as one who shares in the administration of justice,
and in offices. He explains: “He who has the power to take part in the deliberative or
judicial administration of any State is said by us to be a citizen of that State; and,
speaking generally, a State is a body of citizens sufficing for the purposes of life.”8
Taking cognizance of this explanation, a State for Aristotle, therefore, has to do with
the number of such person large enough to secure a self-sufficient life – the highest
form of community or association of citizens in a constitution. Above all, in
Aristotelian polity or the constitutional government, the citizens at large administer
the State for the common interest. The government is called by the generic name, a
constitution. Power is concentrated in the offices as a rule of law in the polity.
Therefore, the law should control the power of those in offices, since good laws are
supreme in the State.
Marcus Tullius Cicero (106-43 B.C.), one of the greatest Roman orators and a
distinguished statesman, was inspired by the teachings of Plato and Aristotle. During
his time, he tried to defend the earlier Roman constitutions against the emergence of
autonomy. In his book, On the Commonwealth and On the Laws, he is of the opinion
that the State belongs to the people, and the people are an association of a good
number of persons based on justice and partnership to secure common good.9 It
originates from man’s natural gift of social spirit that draws him always to
partnership. It is the association of citizens under law.
Cicero having seen how the State has lost its spirit of association and partnership
because of being hijacked by few individuals, questioned why the State would be
12
called a “concern of the people,” that is, a commonwealth. This is because everyone is
crushed by the cruelty of one man and there is no single bond of law, agreement or
association of the group, which is what is meant by “people.”10 He agrees that laws
are invented for the safety of citizens, the preservation of State and the tranquility and
happiness of human life. However, those who first put statues of their kind in force
convince their people that it is their intention to write down and put into effect such
rules to make their life honourable and happy once they accept and adopt the rules.
Then, these rules when drawn up and enforced, they are called “laws.” According to
Cicero, law is a natural force; it is the mind and reason of the intelligent man, the
standard by which justice and injustice are measured.11
In his assessment, he agrees that the most learned man has determined to begin with
law. This is because for him it would seem that they are right if, according to their
definition, law is the highest reason, implanted in nature, which commands what to be
done and forbids the opposite. For those creatures who have received the gift of law,
which is right reason applied to command and prohibition, when this reason is firmly
applied and fully developed in the human mind, it becomes law.
Moreover, Cicero has a comprehensive definition of a true law in his book, On the
Commonwealth and On the Laws. According to him,
True law is right reason, consonant with nature, and spread through all
people. It is constant and eternal; it summons to duty by its orders, it
deters from crime by its prohibitions. Its orders and prohibitions to
good people are never given in vain; but it does not move the wicked
by these orders or prohibitions. It is wrong to pass laws obviating this
law; it is not permitted to abrogate any of it; it cannot be totally
repealed. We cannot be released from this law by the senate or the
people, and it needs no exegete or interpreter… There will not be one
law at Rome and another at Athens, one now and another later; but all
nations at all times will be bound by this one eternal and
13
unchangeable law, and the god will be the one common master and
general of all people. He is the author, expounder, and mover of this
law; and the person who does not obey it will be in exile from himself.
Insofar as he scorns his nature as a human being, by this very fact he
will pay the greatest penalty, even if he escapes all the other things that
are generally recognized as punishments.12
Thus, we cannot call the oppressive rules and regulations of some nations that
obviously lack the qualities of true law or selfish principle true laws. The true law in
the words of Cicero cannot be repealed or abrogated since it is eternal. They are
supposed to have the ability to distinguish between the just and unjust, the right and
wrong. Then concerning whether the State without law could be seen as a true State,
Cicero avers that law is of the greatest good of the State; therefore, such a State could
be seen as no State.
St Thomas Aquinas (1225-1274) who is influenced greatly by Aristotle also addresses
the issue of law and State in his political teaching; though he does not undertake to
write any political treatise as such. The elements of his teaching in politics are
subsidiary to his philosophy and theology, through which he responded to the
situation of his time. He did not give a precise theory of the structure of the civil
society, even though one could draw his view on the issue from his Treatise On Law.
For Aquinas, “law is a rule and measure of acts that induces persons to act or refrain
from acting. For law (lex) is derived from binding (ligare) because law obliges
persons to act.”13 He sees reason as the rule and measure of human acts, which is the
primary source of human acts. Thus, it belongs to reason to order us to our ends which
is the primary source regarding our prospective action. Consequently, the source in
any kind of thing is the measure and rule of that kind of thing.
14
Aquinas is of the opinion that since law is a rule or measure, it belongs to something
in two ways. In the first place, it belongs only to reason, since measuring and ruling
belong to reason. Law in the second way belongs to something as to what is ruled and
measured. Law directs the actions of human beings. However, in the strict sense, law
needs to concern ordination to happiness in general, since every part is related to a
whole as something imperfect to something perfect. He explains: “Since we speak of
law in the first place because of its ordination to the common good, every other
precept regarding particular acts has the nature of law only because of its ordination to
the common good.”14 Primarily speaking, law regards ordinary things for the common
good. Ordinary things for the common good belong either to the whole people or to
public personage who has the care of the whole people. Lawmaking therefore,
belongs either to the whole people or to a public personage who has the care of the
whole people. Hence, ordinary thing for ends certainly belongs to those to whom the
ends belong. Law belongs both to those who rule, and by participation to those who
are ruled. The State is a natural institution. It is derived from the nature of humanity.
Nevertheless, as the State rules the behaviour of its citizens through the agency of
law, it is in turn limited by the requirements of just laws. With regard to this, Stumpf
notes that lawmaking must not be an arbitrary act but must be done under the
influence of the natural law, which is the participation of humanity in God’s eternal
law.15 The authority of the political sovereign comes from God and the aim of this
authority is to provide for the common good. Authority should not be used as an end
in itself or for selfish ends. In like manner, the common good must not be interpreted
in such a way that the individual is lost sight of in the collective whole. The common
good must be the good of concrete persons. According to Aquinas, the proper effect
15
of law is to make its subjects good, either absolutely or in some respect. The true
ground of the lawgiver is his intention to secure the common good regulated
according to divine justice. Hence it follows that the effect of the law is to make men
good.16 This means that the phrase “common good” has no meaning except it results
in the individuals’ good. The goodness of any part is considered in comparison with
the whole. Since every man is a part of the State, it is impossible for a man to be good
unless he is well proportionate to the common good. The whole schemes of society
and its laws are characterized by the rational elements in it. Law itself is ‘an ordinance
of reason for the community.’
Furthermore, Aquinas distinguishes between four kinds of law: i) Eternal law, which
is the reason in God’s mind that governs the universe. The conception of things by the
Divine Reason is not limited by time; it is eternal. God himself is the end of the divine
government of the universe and he is not different from his law. ii) Natural law: For
Aquinas, law can belong to things in two ways since it is a rule or measure. In one
way it belongs to those who rule and measure, and in the second way to those ruled
and measured, since things are ruled or measured insofar as they take part in the rule
or measure. Natural law therefore, rules and measures everything subject to God’s
providence. It consists of that portion of the eternal law that pertains to people
particularly. All things take part in the eternal law thanks to its being imprinted on
them and from this all things derive their respective inclinations to their proper acts
and ends. This participation in the eternal law by rational creatures is called the
natural law.17 iii) Human law: This is taken from the general principle of natural law.
It refers to the specific statutes of governments. What gives a rule the character of law
is its moral dimension, its conformity with the precepts of natural law, its agreement
16
with the moral law. Natural laws have to do with regulations devised by human
reason, provided the other conditions belonging to the nature of law are observed.
Every human law is derived from the law of nature and at any point it deflects from
the law of nature, it is no longer a law but a perversion of law. Consequently, such
law no longer binds in conscience even though it is obeyed sometimes to prevent
greater evil. iv) Divine law on the other hand is the divine ordinance, which directs
people to their proper end, that is, eternity. It belongs to the divine law to induce
human beings to observe the commandments. This law is found in the scripture and is
given to one through revelation. In a nutshell, the understanding of law in the light of
Aquinas helps man to restructure and govern his political society. The human political
society should depict and respect these four divisions of law for a well-ordered
society. This is made possible when the political or civil society is built and directed
towards the realization of natural and supernatural ends.
Thomas Hobbes (1588-1679), a modern political theorist while considering the State
of nature in his book, Leviathan, observes that man originally existed in a condition of
natural warfare. For him, man is wolf to man (homo lupus homini). He introduces his
political philosophy by rejecting Aristotle’s basic claim that man is by nature a
political animal. This is based on his idea of how people operate in the State of nature,
the condition of people before the organized society or civil society. Hobbes is of the
view that in the State of nature all humans are equal and equally have the right to
whatever they consider essential for their survival, even the weakest. The right of
nature (jus naturale) in the State of nature is the liberty each man has to use his own
power as he wills for the preservation of his own life, and consequently, to do
anything which he deems suitable in his own judgment and reason.18 That is to say,
17
whatever satisfies anybody’s appetite is for him good and he would pursue it; and
whatever a person has aversion for is for him bad and he would avoid it. In the pursuit
of their hope and desires for their ends, which may conflict, men become enemies,
hating and fighting each other. Here equality means that people are capable of hurting
their neighbours and taking what they judge important for their own protection. There
are no rules and regulations in the State of nature than self-interest and its satisfaction.
In man’s nature there are three principal causes of quarrel: competition, diffidence
and glory. The first makes men to fight for gain, the second for safety and the last for
reputation. Here, while the first uses violence to make itself master of others, the
second, to defend them and the third, for trifles, as a word, a smile, a different
opinion, and any other sign of undervalue.19 There is always the situation of “war of
everyone against everyone” or “war of all against all” (bellum omnium contra omnes)
in the State of nature. The “right of all to all” which is practiced in this State does not
mean that one person has a right while others have corresponding duties. It is one’s
freedom to do whatever one likes and against whom one wishes and also to
confiscate, use and enjoy all that one could get. Here, the driving force in a person is
the will to live. People are tirelessly, recklessly and unrelentingly pursuing whatever
acts they deem necessary for their safety and survival. The picture one gets of this
State of nature is of people moving against each other, bodies in motion, or the
anarchic condition of war of everyone against everyone. In this case, everyone is
governed by his own reason, and everything one does is geared towards preserving his
own life against his enemies. Therefore, in such a State, every man has right to
everything, even to one another’s body. Nevertheless, as long as this natural right of
18
every man to everything lasts, there can be no security or peace to any man and to the
State at large.
In the words of Hobbes, to this war of every man against every man, the consequent is
that nothing can be unjust. Here there is no place for the notions of right and wrong,
justice and injustice. Where there is no common power, there is no law; where there is
no law, no injustice. Force and fraud are in war the two cardinal virtues. Justice and
injustice are none of the faculties neither of the body nor mind. In the State of nature,
Hobbes explains:
There is no place for industry, because the fruit thereof is uncertain:
and consequently, no culture of the earth; no navigation, nor use of the
commodities that may be imported by sea; no commodious building;
no instruments of moving and removing such things as require much
force; no knowledge of the face of the earth, no account of time, no
arts, no letters, no society, and…worst of all, continual fear and
danger of violent death, and the life of man, solitary, poor, nasty,
brutish and short.20
However, there are passions that also incline men to peace in this State of war. They
include the fear of death, the desire for commodious living and a hope to obtain them
by their industry. Suffice it to point out that it is the struggle to survive that drives
men to seek peace which leads to the social contract and culminates into
commonwealth. In Hobbes’ view, men by following the dictates of natural law, that
is, to preserve themselves and seek peace, renounce some of their rights or liberties
and enter into social contract. Consequently, they create the Leviathan – the State or
commonwealth.
Social contract is an agreement by which men avoid the state of nature and then enter
into civil society/civil State. This they do by conferring all their powers and strengths
19
on one person or an assembly of persons to bear their person as well as to reduce all
their will into one. Hence, Hobbes notes:
This is more than consent, or concord; it is a real unity of them all in
one and the same person, made by covenant of every man with every
man, in such manner as if every man should say to every man: I
authorize and give up my right of governing myself to this man, or to
this assembly of men, on this condition; that thou give up thy right to
him, and authorize all his actions in like manner…This is the
generation of that great Leviathan, or rather, to speak more reverently,
of that mortal god, to which we owe, under the Immortal God our
peace and defence.21
Hobbes’ doctrines of the commonwealth and the sovereign are made possible thanks
to his social contract theory. For him, the civil covenant or contract by which each
gives his right of self-government establishes “a unity” among the people. It
establishes a “common power,” to enforce the covenant. This he calls the Leviathan,
the commonwealth (civitas). Hence, he defines the commonwealth as “one person, of
whose acts a great multitude, by mutual covenants one with another, have made
themselves everyone the author, to the end he may use the strength and means of them
all as he shall think expedient for their peace and common defence.”22 This means
that the commonwealth is the sovereign whom the people have entrusted with the
power to guarantee their peace and security through their social pact. It is important to
note that the sovereign is generated by the social contract though it is not a party to it;
thus everyone is subject to this sovereign or the sovereignty. There could be no
limitation to the authority of the sovereignty. The sovereign is the one that takes up
the person of the commonwealth.
Talking about law, Hobbes upholds that civil law consists of rules by which the
commonwealth commands the subjects to judge between right and wrong. Law,
20
whether civil or natural, cannot be against reason; intention of the legislator is
necessary not letters of the law. Civil law comes not from private reason, which could
be discordant, but from the reason of our artificial man – the commonwealth. For him,
civil law must always be promulgated to attain the status of full law. Besides, Hobbes’
theory of the State is based on a form of “State absolutism.” This we see in his
doctrine of the social contract. In his words, sovereignty should be perpetual,
undivided, and absolute. Any limit on the power of the sovereign or sovereignty may
lead to anarchy, thus, a return to the state of nature.
One of the most outstanding social contract theorists in the history of political thought
is John Locke (1632-1704). He belongs to the leading fathers of British empiricism.
Unlike Hobbes who conceives the state of nature as a state of war of all against all, it
is Locke’s conviction that men are naturally free and equal in the state of nature. He
expounds his political view by distinguishing between the state of nature and the state
of civil or political society. In his Two Treatises of Government and a Letter
Concerning Toleration, he observes that to understand political power right and
derive it from its original, we must consider what state all men are naturally in and
that for him is the state of perfect freedom and equality.23 There is no subjection or
subordination in the state of nature. Here people are their own judge and master, each
seeking his or her own good individually. “But though this be a state of liberty, yet it
is not a state of licence: though man in that State has an uncontrollable liberty to
dispose of his person or possessions, yet he has not liberty to destroy himself, or so
much as any creature in his possession, but where some nobler use than its bare
prevention calls for it.”24
21
The state of nature has a law of nature which is reason to govern it. It obliges and
teaches all not to harm another’s life, health, liberty or possession, since all are equal
and independent under one supreme omnipotent and infinitely sovereign Creator. All
share with one another the community of nature without any subordination to destroy
one another. Everyone is bound to preserve himself and not to quit his station
willfully. In the same vein, everyone should preserve the rest of mankind, respecting
the rights of others and upholding the law of nature for peace and order.
However, there is a state of war (a state of enmity and destruction) when a man or
group through absolute power attempts to hinder or deny another’s total freedom in
the state of nature. Any attempt to dominate the other always leads to resistance from
the other and then conflict or war. There is a difference between the state of nature
and the state of war. While the latter is a state of force on others since they have no
common authority to appeal to, the former is a state of total freedom of men “without
common superior on earth.” According to Locke, “want of a common judge with
authority puts all men in a state of nature: force without right, upon a man’s person,
makes a state of war, both where there is, and is not, a common judge.”25 There is the
right of retaliation by the victim of aggression in the state of war since there is no
common authority. This state of war results from the conditions of the state of nature;
thus, to avoid this state, men put themselves under an authority to appeal to which
takes them away from the state of nature and brings them into a political society
through the social contract.
Men enter into a political society to avoid the inconveniences of the state of nature.
Here, they consent to a pact freely, thus forming a single body politic (a
22
commonwealth), by which the people put themselves under a political power. They
are not to forgo their freedom and live under servitude. Rather, they quit their natural
legislative and executive powers and resign them to the community. The community
now becomes the umpire of defence and property. In the words of Locke: “those who
are united into one body, and have a common established law and judicature to appeal
to, with authority to decide controversies between them, and punish offenders, are in
civil society one with another; but those who have no such common appeal, I mean
on earth, are still in the state of nature, each being, where is no other, judge for
himself, and executioner…”26 He further notes that whenever any number of men are
so united into one society thereby quitting their executive powers bestowed on them
by the law of nature and resign it to the public, there comes a political or civil
society…27
In the civil or political society, one relinquishes one’s legislative and executive
powers to the commonwealth and authorizes it to legislate for the common good. The
commonwealth has the right to rule every member and to judge through appointed
authority. Also every member has a place to appeal to for his rights. Without this
power to appeal to, men will always remain in the state of nature.
Locke criticizes absolute monarch for being inconsistent with what a civil government
is all about. This is based on the fact that monarch appears to be the only one who
retains all the liberty in the state of nature when others have quitted it. The civil
society makes up the body politic with the legislature, not a single member. Hence,
every single person becomes subject, equal with other meanest men, to those laws
which he himself as part of the legislature has established; nor could anyone, by his
23
own authority avoid the force of law when once made. “No man in the civil society
can be exempted from the laws of it…”28
In his Complete Works, the Dutch-Jewish philosopher, Benedict Baruch Spinoza makes
a distinction between the natural state and the civil state which is related to the social
contract theorists, precisely Thomas Hobbes’. According to him, the natural right of
the individual follows from the necessity of its nature, the sovereign law and the right
of nature that each individual should try to preserve himself. Thus, he writes:
By the right of nature, then I understand the laws or rules of nature in
accordance with which all things come to be; that is, the very power of
nature. So the natural right of nature as a whole, and consequently, the
natural right of any individual is coextensive with its power.
Consequently, whatever each man does from the laws of his own
nature, he does by the sovereign right of nature, and he has much right
over nature as his power extends.29
Man insofar as he is part of nature, constitutes a part of the power of nature. Hence,
whatever follows from the necessity of man’s nature – that is, from nature as we
conceive her to be determinately expressed in man’s nature – follows from human
power, even though it does so necessarily. In the state of nature, man is after what he
thinks good, influenced by his passion. There is no law to restrain him, to rule, to
judge good and evil, no universal consent. All things belong to all; there is no
common consent about ownership of anything, no justice and no injustice.
…no one is able to transfer to another his natural right or faculty to
reason freely and to form his own judgment on any matter whatsoever,
nor can he be compelled to do so. Consequently, a government that
attempts to control men’s minds is regarded as tyrannical, and a
sovereign is thought to wrong his subjects and infringe their right when
he seeks to prescribe for every man what he should accept as true and
reject as false…30
24
On the other hand, in the civil State, there is a universal consent of what is good and
evil. Here everyone must obey the State. There is a common consent about
ownership; there could be justice and injustice, merits and demerits and penalties. In
the civil State the laws of reason is at the basis of common rule. Every man is born
under the rights and ordinance of nature; this does not forbid strife, hatred, anger or
conflict. However, to uphold man’s good and his preservation, the law of reason must
be followed. For Spinoza, everyone will live free of injuries and enjoy their highest
right, if all lived according to the dictates of reason. Reason gives man’s life better
meaning. It helps him to pursue his true good, assures him of a more secure life;
restrains him from injuring others and inspires him to defend his neighbour’s right.
This should be at the root of the civil State. Therefore, if human nature were so
constituted that men lived only as reason prescribes and attempted nothing other than
that, then the right of nature, insofar as that is considered as specific to man, would be
determined solely by the power of reason.31
However, since men are naturally influenced by strong passions (affects), more than
reason, which could make it difficult to avoid conflicts and injuries except them
consenting to cede their natural right, there is need for order or law. This is because
men need each other for a commodious living and no one could single handedly
provide for all his needs. The society can now through the law claim this individual
natural right of judging, deciding and avenging what is good or evil among men. The
society takes over the right or power to prescribe, promulgate and enforce common
rule of life for all. This society firmly established by law for the common good and
with a power of self-preservation is what Spinoza called a “State” and those who are
protected by its rights he called “citizens.”
25
The best civil State for Spinoza is the commonwealth, which is founded and guided
by reason. To ensure the highest self-preservation, peace and security of life which is
the end of the political or civil State, the best commonwealth must frame its laws
according to the dictates of reason. This upholds its independence and unity. He
observes that the teaching of reason is wholly directed to seeking peace, but peace
cannot be achieved unless the common laws of the commonwealth are kept inviolate.
Hence, the more a man is guided by reason – that is, the more he is free - the more
steadfast he will be in preserving the laws of the State and in carrying out the
commands of the sovereign whose subject he happens to be.32 Above all, Spinoza
rejects monarchical form of civil State while criticizing Machiavelli’s view of the
sovereign prince, but appropriates democracy. It is a society which wields all its
power as a whole. The sovereign power is not restrained by any laws, but everyone is
bound to obey it in all things. Hence, only democracy represents and manifests what a
true civil State should be: “a society based on the dictates of reason,” no other form of
civil society and government or dominion.
A French political philosopher, Charles De Montesquieu (1689-1755) influenced
greatly by John Locke’s political theory and English constitution also talked about the
necessity of law in the nature of beings and in the state of nature. In his book, The
Spirit of Laws, he believes that law and constitutions of a State must be rooted
ultimately in the “spirit” of the people. In their most general signification, laws are the
relations arising from the nature of beings. Thus, all beings have laws according to
their specific natures – the deity, the material world, the intelligences superior to man,
the beasts and man.33 Montesquieu argues that blind fatalism is absurd since it cannot
produce intelligent beings. Therefore, those who assert that a blind fatality produced
26
the various effects we behold in this world talk very absurdly. The order of the world,
the relation between the Creator and creatures, all follow the same laws. There are
natural laws and positive laws. The latter are made by intelligent beings and are
presupposed by the natural laws, which are derived from the natural inclination of
beings. “Before laws were made, there were relations of possible justice. To say that
there is nothing just or unjust but what is commanded or forbidden by positive laws, is
the same as saying that before the describing of a circle all the radii were not equal.”34
We must therefore acknowledge relations of justice antecedent to the positive law by
which they are established. For instance, if human societies existed, it would be right
to conform to their laws. If there were intelligent beings that had received a benefit of
another being, they ought to show their gratitude. If one intelligent being had created
another intelligent being, the latter ought to continue in its original state of
dependence. If one intelligent being injures another, it deserves a retaliation; and so
on.
Montesquieu further grapples with the difficulty of reconciling the issue of the
necessity of law in the nature of beings and that of the freedom of intelligent beings.
Thus, he questions: Does law involve some determinism, if so, what of the case of
particular intelligent beings? In response to the question he answers that it is part of
the nature of the intelligent beings to be free agents. Hence, the law of their nature is
also the law of freedom.
In the natural state, men, while feeling weak and inferior before each other, desire
peace and association. Consequently, there is the need to establish rules of order in
this association to sustain continuous peace. This is the institution of positive laws.
27
Therefore, positive laws are arising from the state of war, which begins as man
overcomes his original weakness and achieves a sense of equality in entering into a
state of civil society. In other words, there would be no danger of one being attacked
by the other; peace would be the first law of nature. As members of a society that
must be properly supported, they promote smooth mutual relationship between
individual members of a civil society as civil laws. Also they regulate the relationship
between nations as the law of nations as well as the relationship between the
governors and the governed as the political laws. According to Montesquieu, the laws
of nations is naturally founded on this principle, that different nations ought in time of
peace to do one another all the good they can, and in time of war as little injury as
possible, without prejudicing their real interests. “Law in general is human reason,
inasmuch as it governs all the inhabitants of the earth: the political and civil laws of
each nation ought to be only for the particular cases in which human reason is
applied.”35 Besides the law of nations relating to all societies, Montesquieu explains,
there is a polity or civil constitution for each particularly considered. Therefore, no
society can subsist without a form of government. There cannot be a meaningful
government without a system of law. Both together represent the united strength of
the people, that is, the body – politic. For him, one man or more could constitute the
government. However, the strength of individuals cannot be united without a
conjunction of their wills. “The conjunction of those wills” is what we call the “civil
State.”36 Certainly, the best government is that which is in accordance with the
disposition of the people for whom it is made. Their laws should be framed also
according to their own life situation (zit in liben), following their own possible type of
28
government. All these in their relations together contribute and constitute the “Spirit
of Laws.”
Rousseau by comparing men in the “state of nature” with citizens of a civil society,
admits that he cannot give a specific account of how the transition from the earlier
state to the later one occurred. Hence, the purpose of his book The Social Contract is
therefore to provide an answer to the question why it is that a person ought to obey
the general will (the laws of government). It is not to describe the change from
humanity’s natural state to the subsequent membership in a political society. At this
juncture, we now consider his theory of law and civil State.
29
End Notes
1
2
Plato, The Republic, trans. Jowett (New York: Vintage Books, 1991), 59.
Plato, The Republic, 60.
3
Plato, The Republic, 203.
4
Aristotle, “Politics” in The Complete Works of Aristotle, ed. Jonathan Barnes Vol. One
(Princeton: University Press, 1991), 4.
5
Aristotle, “Politics” in The Complete Works of Aristotle, 4.
6
Aristotle, “Politics” in The Complete Works of Aristotle, 4.
7
Aristotle, “Politics” in The Complete Works of Aristotle, 5.
8
Aristotle, “Politics” in The Complete Works of Aristotle, 48.
9
Marcus T. Cicero, On the Commonwealth and on the Laws (New New York: Cambridge
University Press, 1999), 18.
10
Marcus T. Cicero, On the Commonwealth and on the Laws,75.
11
Marcus T. Cicero, On the Commonwealth and on the Laws, 112.
12
Marcus T. Cicero, On the Commonwealth sand on the Laws, 71 -72.
13
Thomas Aquinas, Treatise On Law, trans. Richard J. Regan (Cambridge: Hackett Publishing
Company, Inc., 2000), 1.
14
Thomas Aquinas, Treatise On Law, 3.
15
Samuel E. Stumpf, Philosophy: History and Problems (New York: Mc Graw-Hill Inc.,
1994), 194.
16
Thomas Aquinas, Treatise On Law, 19.
17
Thomas Aquinas, Treatise On Law, 9.
18
Thomas Hobbes, Leviathan (London: Green Dragon, 1651), 79.
19
Thomas Hobbes, Leviathan, 77.
20
Thomas Hobbes, Leviathan, 78.
30
21
Thomas Hobbes, Leviathan, 106.
22
Thomas Hobbes, Leviathan, 106.
23
John Locke, Two Treatises of Government and a Letter Concerning Toleration (New
Haven: Yale University Press, 2003), 101.
24
Locke, Two Treatises of Government and a Letter Concerning Toleration, 102.
25
Locke, Two Treatises of Government and a Letter Concerning Toleration, 108.
26
Locke, Two Treatises of Government and a Letter Concerning Toleration, 137.
27
Locke, Two Treatises of Government and a Letter Concerning Toleration, 137-138.
28
Locke, Two Treatises of Government and a Letter Concerning Toleration, 141.
29
Baruch B. Spinoza, Complete Works, trans. Samuel Shirley, ed. Michael L. Morgan
(Cambridge: Hackett Publishing Company, 2002), 683.
30
Baruch B. Spinoza, Complete Works, 566.
31
Baruch B. Spinoza, Complete Works, 683.
32
Baruch B. Spinoza, Complete Works, 691.
33
Charles B. De Montesquieu, The Spirit of Laws, trans. Thomas Nugent (Canada: Batoche
Books, 1752), 19.
34
Charles B. De Montesquieu, The Spirit of Laws, 18.
35
Charles B. De Montesquieu, The Spirit of Laws, 23.
36
Charles B. De Montesquieu, The Spirit of Laws, 22.
31
CHAPTER THREE
ROUSSEAU’S THEORY ON LAW AND CIVIL STATE
3.0 A Brief Bio-data of Rousseau
Jean-Jacques Rousseau was a Swiss-born philosopher, an educationist, a writer and a
political theorist whose treatises and novels inspired the leaders of the French
Revolution, the Romantic generation as well as the overall development of modern
political, sociological, and educational thought. His career unfolded during the 18th
century French Enlightenment, that Age of Reason which was dominated by Voltaire,
Montesquieu, Diderot, Condorcet, Holbach, and others who were known as
‘philosophes.’ These people were dissident voices who challenged the traditional
modes of thought concerning religion, government and morality. Believing that
human reason provides the most reliable guide to man’s destiny, they held that
“Reason is to the philosophe what grace is to the Christian.” Rousseau entered into
this vigorous intellectual climate with the most unlikely credentials. In spite of his
little formal education, he fashioned a set of ideas about human nature with such
compelling power, that his thought ultimately prevailed over the most impressive
thinkers of his time. In fact, he was the least academic of modern philosophers and in
many ways the most influential. His thought marked the end of the Age of Reason. He
propelled political and ethical thinking into new channels. His reforms revolutionized
taste, first in music, then in the other arts. He had a profound impact on people’s way
of life; he taught parents to take a new interest in their children and educate them
differently. He furthered the expression of emotion rather than polite restraint in
friendship and love. Among other things, he opened men’s eyes to the beauties of
nature, and he made liberty an object of almost universal aspiration.
32
Rousseau was born on June 28, 1712, in Geneva, Switzerland. His mother died a few
days after his birth, and his father, a watchmaker left him at the age of ten in the care
of an aunt, who raised him up. After two years in a boarding school where, he says in
his Confession, as pointed out by Stumpf, “we were to learn… all the insignificant
trash that has obtained the name of education”, his formal education ended at the age
of twelve.1 Having served a short apprenticeship as an engraver of watch cases, he
fled from Geneva to live the life of an adventurer and a Roman Catholic convert in the
kingdoms of Sardinia and France. During his wandering period, Rousseau was
fortunate in finding in the province of Savoy a benefactress by name Baronne de
Warens, who provided him with a refuge in her home and employed him as her
steward. She equally furthered his education to such a degree that the boy who arrived
her house as a stammering apprentice who had never been to serious schooling
developed into a philosopher, a man of letters, and a musician. Rousseau was a
precocious child and learnt to read at an early age. In his twenties he read portions of
the classic works of Plato, Virgil, Horace, Montaigne, Paschal and Voltaire, which
strongly influenced his imagination in their variety.
Rousseau reached Paris in 1742 when he was thirty and soon met Denis Diderot,
another provincial man seeking literary fame in the capital. Both of them formed the
core of the intellectual group, the Philosophes. He formed a lifelong relationship in
1746 with an uneducated young servant girl, Therese Le Vasseur, whom he later
married in 1768.
Furthermore, Rousseau began his literary carrier with his prize-winning essay entitled
A Discourse on the Arts and Sciences (1750). Here he argued that morals had been
33
corrupted by the replacement of religion by science, by sensuality in art, by
licentiousness in literature, and by the emphasis upon logic at the expense of feeling.
This essay made Rousseau famous and even made Diderot to say that there was not an
instance of a like success as pointed out by Stumpf.2 Besides his Operetta, le Devin
du Village (1752), performed before the king and his court at Fontainebleau, which
attracted their admiration and a comedy, Narcisse, he published two other important
works in 1755, his Discourse on the Origin of Inequality and Discourse on Political
Economy which appeared in the Encyclopedie. Increasingly unhappy in Paris,
Rousseau travelled to Montmorency where he published a love story in 1761, Julie,
ou La Nouvelle Heloise (The New Eloise), which became the most celebrated novel of
the eighteenth century and won him many fans. However, it scandalized the French
authorities, who turned it and ordered Rousseau’s arrest. His book Emile (A Treatise
on Education), published in 1762, offered an elaborate proposal for a new approach to
education and contained also a provocative section. While advocating the importance
of religion to mankind he wrote The Confession of Faith of a Savoyard, which was
critical of institutional religion. Rousseau was of the opinion that, insofar as they lead
people to virtue, all religions are equally worthy, and that people should therefore
conform to the religion in which they have been brought up. This religious
indifferentism caused Rousseau and his books to be banned from France and Geneva.
He was condemned from the pulpit by the Archbishop of Paris, his books were burnt,
and warrants were issued for his arrest. Also in the same 1762 he published his
famous work, The Social Contract, in which he sought to describe the movement
from the “state of nature” to the civil state.
34
Rousseau’s last days were not palatable as he was unhealthy and suffered from
profound paranoia. He at one point accepted David Hume’s invitation to see him in
England, where he spent sixteen months. He later returned to France convinced that
his enemies were plotting to defame him. Finally, when Rousseau became aware that
Voltaire was dying, he said, “our lives were linked to each other; I shall not survive
him long.” He died on 2 July 1778 in Emenonville at the age of sixty-six and his
detailed autobiography was published post-humously in his Confessions.
3.1 The State of Nature in Rousseau
One of the major stages of man’s political development by which Rousseau’s social
contract could be explained is the state of nature. It is a concept in moral and political
philosophy used in religion, social contract theories and international law to denote
the hypothetical conditions of what the lives of people might have been like before
societies came into existence. There must have been a time prior to the existence of
organized societies, and this presumption raises questions such as: What was life like
before civil society? How did government first emerge from such a starting position?
What are the hypothetical reasons for entering a state of society by establishing a
Nation-state? Considering this issue, Rousseau is of the view that men in their natural
state are free, equal, and enjoy idyllic happiness; but they are enslaved everywhere.
Consequently, he begins his book, The Social Contract, with the famous phrase that
“Man was born free, and everywhere he is in chains.”3 In the state of nature, people
are happy not because they are angels but because they live entirely for themselves
and therefore possess an absolute independence. Commenting on this, Locke explains
that even though this is a state of liberty, it is not a state of licence. It is governed by
35
the law of nature which obliges and teaches everyone who will consult it that being all
equal and independent, no one ought to harm the other in his life, health and
possessions.4 According to Rousseau, people are motivated in the state of nature by ‘a
natural sentiment,’ which inclines every animal to watch over its own preservation.
They develop vices because, at this stage, they are motivated by an artificial sentiment
which is born in society and which leads every individual to make more of himself
than every other. This inspires in men all the evils they perpetrate on each other,
including the unhealthy competition for the few places of honour, envy, malice,
vanity, pride and contempt. The social order and its rights are founded on agreements
not on nature. Even the most natural society - the family, is permanently established
based on agreements. On the other hand, when the people elect a king, it implies that
such people have already agreed among themselves before the election. That is to say,
their act is already civil. This shows that there is a basic agreement, which constitutes
a group of people: an agreement fundamental to every other in the civil society. In
fact, it is the true foundation of society.5 According to Kant:
The first thing incumbent on men is to accept the principle that it is
necessary to leave the state of nature…and to form a union of all those
who cannot avoid coming into reciprocal communication, and thus
subject themselves in common to the external restraint of public
compulsory laws. Men thus enter into a civil union, in which everyone
has it determined by law what shall be recognized as his; and this is
secured to him by a competent external power distinct from his own
individuality.6
This is the fundamental and constitutive agreement that leads to the transition from
the original state to the state of civil society. It is the primary obligation on the part of
all men, to enter into relations for the civil state
36
3.2 The Social Contract
The social or political contract is a theory or model, originating during the Age of
Enlightenment, which suggests historically how and civil state as an organizational
structure came to be. It addresses the questions of the origin of society and the
legitimacy of the authority of the state over the individual. Social contract argument
typically posits that individuals have consented, either explicitly or tacitly, to
surrender some of their remaining rights. Although the “social contract,” idea seems
to imply that such a contract is reached at some point in the historic past, Rousseau
does not view it in historical terms since he admits that there is no way to discover
evidence for such an event. It is a living reality which is present wherever there is a
legitimate government. According to Rousseau, at a point in the development of
mankind, the obstacles to men’s self-preservation in the state of nature are too great to
be overcome by an individual’s strength in order to maintain himself in this state. He
writes:
Although man had previously been free and independent, we find him, so
to speak, subject, by virtue of a multitude of fresh needs, to all of nature
and particularly to his fellow, whose slave in a sense he becomes even in
becoming their master; rich, he needs their services; poor, he needs their
help; and being midway between wealth and poverty does not put him in a
position to get along without them.7
Therefore, the original state can no longer subsist, and the human race would perish
if it does not change its mode of existence, since men cannot generate new strength,
but only unify and control the forces already existing. It means that they have to
create by contribution, a totality of forces sufficient to overcome the obstacles
resisting them. This is also done to direct their operation by a single impulse, and
make them act in unison for their own preservation. For Rousseau, the totality of
37
forces can only be formed by the collaboration of a number of persons. The question
then is: How can man commit his strength and freedom to others without harming
himself, and neglecting the duty of care to himself since they are the main instruments
of his preservation?8 Of what relevance is the social contract since man must freely
pursue his self-preservation? To this Rousseau answers that since man must harness
all the forces at his disposal for his survival by forming a group outside of which it
would be hard for him to preserve himself, there is need to form an association. This
will defend and protect with the whole common force the person and goods of each
associate. It must be such that each while uniting himself with all, may still obey
himself alone and remain as free as before.9 This is the fundamental problem which
the social contract is out to address. Considering the solution to this problem,
Rousseau observes that it is the total alienation of each associate, together with all his
rights, to the whole community. Even though this recommendation appears to be a
prescription for despotism, he is convinced that it is the way to freedom. It is a living
contract.
This living contract is the basic principle underlying a political association. This
principle helps to overcome the lawlessness of absolute licence and assures freedom,
since people willingly adjust their conducts to meet up with the legitimate freedom of
others.
Men being, as has been said, by nature all free, equal, and independent,
no one can be put out of this estate, and subjected to the political
power of another, without his own consent. The only way whereby any
one divests himself of his natural liberty, and puts on the bonds of civil
society, is by agreeing with other men to join and unite into a
community, for their comfortable, safe, and peaceable living one
amongst another, in a secure enjoyment of their properties, and a
greater security against any that are not of it.10
38
Rousseau explains:
For if individuals retained some rights, there being no common superior
to give judgment between them and the public, each would make his
own judgment on certain points, and would soon aspire to do so on all
of them: the state of nature would remain in force, and the association
would become, necessarily, either tyrannical or meaningless.11
Just as we have already mentioned, what one loses by the social contract is one’s
“natural freedom” and an unlimited right to everything. What one gains on the other
hand is “civil freedom” and a property right in what one possesses. This total
surrender to all means eventually no surrender to anyone; and one has then the right
over all as they have over one. He gains the equivalent of all that he loses, and greater
strength for the conservation of what he possesses. Rousseau concludes that the
essence of the social contract is that: “Each of us puts his person and all his power in
common under the supreme direction of the general will; and we as a body receive
each member as an individual part of the whole.”12Concerning this Hegel explains:
“Individuals can attain their ends only insofar as they themselves determine their
knowing, willing, and acting in a universal way and make themselves links in this
chain of social connexions.”13
Above all, the social contract paves the way to a civil association: an artificial body
with many members united with collective personality, self, life and will. Suffice it to
note that the public person that is formed in this way by the coming together of all
the others is earlier called “ the city”, and now bears the name “ republic or body
politic.” Its members call it “the state” when it is passive, “the sovereign” when it is
active, and “power” when comparing it to its kind.14 With regard to the associates,
they collectively form a “people”, and are individually called “citizens” as being
sharers in sovereign authority, and subjects as being bound by the laws of the state.
39
3.3 Rousseau on Civil State
It is an obvious fact that Rousseau’s social pact gives rise to the formation of the
“civil state,” which leads to the establishment of the sovereign, according to
Rousseau, this movement from the state of nature to the civil society produces a very
remarkable change in man. It replaces justice for instinct in his conduct, and at the
same time confers on his actions the morality that they have lacked in the past.
Nevertheless, it is only when the voice of duty takes the place of physical impulses
and right of appetite, does man, who so far has considered himself alone, finds that he
is forced to act on different principles as well as to reason properly before listening to
his inclinations. Civil state, which is the union of individual men in civil society under
a system of laws and magistracy or magistracies, is charged with the administration of
the law. Here the citizens are under the guide of the law. It is a fundamental law of the
civil state, that none of its members undertakes to redress or avenge any violation of
his rights, by another, but appeal to the constituted authorities for that purpose.
Rousseau observes that although, in the civil state, one deprives oneself of a number
of advantages which one has by nature, the ones that one acquires are so great. Here
his faculties are improved, his ideas amplified, his feelings ennobled, and his entire
soul raised so much higher, that if the abuses that occur in his new condition did not
frequently reduce him to a state lower than the happy moment when he was taken
from it forever, and which made him, not a limited and stupid animal, but an
intelligent being and a man.15 Suffice it to note that the formation of the civil state is
made possible thanks to the social contract which has law as its moving principle.
Hence, Rousseau observes that what man loses by the social contract is his natural
40
freedom and an unlimited right to anything by which he is tempted and can obtain.
What he gains is civil freedom and the right of property over everything that he
possesses. In the civil state man achieves a superior type of freedom although limited
by the general will than that which he has in the state of nature, which is limited only
by his own individual strength. Nevertheless, granted that the body politic which
constitutes it has absolute power over all its members, as human beings, the members
have their natural rights.
3.3.1 The Sovereign and the General Will
According to Rousseau, the sovereign in the civil state is not the monarch or the
government, but the community in its collective and legislative capacity. It is
constituted by the general people, comprising the leaders and the led. It is not
embodied in any particular visible organ of the state. Individuals, insofar as they are
parties to the social contract, are members of the sovereign. He explains: “Each
individual enters on a contract with himself, so to speak, and becomes bound in a
double capacity, namely, towards other individuals inasmuch as he is a member of the
sovereign and towards the sovereign inasmuch as he is a member of the state.”16 It is
worth knowing that public decisions can put each subject under an obligation towards
the sovereign, because he may be considered in his two different capacities, but for
the opposite reason, they cannot put the sovereign under any obligation towards itself.
Consequently, it is against the nature of the body politic that the sovereign should
impose on itself a law that it cannot infringe.17 This makes it clear that there is no kind
of fundamental law, and cannot be any, not even the social contract, which is binding
41
on the people as a body. This does not mean that the people cannot have a binding
obligation towards others, in any matter not affecting the contract.
Moreover, since the body politic or the sovereign derives its being solely from the
sanctity of the contract, it cannot oblige itself to do anything that derogates from this
original act. For instance, it cannot alienate some portion of itself or submit to some
other sovereign. To violate the act through which it exists would be to destroy itself.
Once the multitude is united in one body, it is impossible to injure one of its members
without attacking the body or the body without its members being affected. Hence,
both contracting parties are obliged by duty and self-interest, to give each other
mutual assistance. The sovereign being formed wholly of the individuals who
compose it, neither has nor can have any interest contrary to theirs. As a matter of
fact, it does not need to give any form of guarantee to its subjects, because it is
impossible for the body to wish to hurt all its members.
Rousseau further observes that the case is different with regard to the relation of the
subjects to the sovereign which, in spite of the common interests of both, nothing
guarantees their commitment to it unless it can find a means of ensuring their fidelity.
Thus he writes:
For each individual can have, as a man, a personal will that is contrary
or dissimilar to the general will that he has as a citizen. His personal
interest can speak to him quite differently from the common interest:
his mode of existence, absolute and independent, can make him regard
what he owes to the common cause as a gratuitous contribution, the
loss of which will be less onerous to others than its payment is for him;
and envisaging the artificial person, in which the state consists, as an
abstract being, on the grounds that it is not a citizen while declining to
fulfil the duties of a subject, an example of injustice which, if it were
to spread, would bring the ruin of the body politic.18
42
The sovereign in its unity is more or less a metaphysical entity since the members of
the body politic through their contract are so bound that to hurt a member is to hurt
the entire body. This is the foundation of the common good. However, to assure that
the social contract does not remain an empty formula for the realization of the aim of
the existence of the body politic (the aim of the social contract), the whole body
should compel everyone who refuses to obey the general will to do so. This means
forcing one to be free. This is made so because the law is after all the product of the
“general will” and the general will is, says Rousseau, the will of the “sovereign.” The
sovereign comprises the total number of citizens of a given society. Therefore, the
general will of the sovereign is the single will which reflects the sum of the wills of
the entire citizens. It is the agreement of interests between every member of a
community. It recognizes freedom as the supreme moral value. For Rousseau, it
attempts to solve the problem of social organization or how to get autonomous, selfenclosed individuals to co-operate in a society while still being free to pursue personal
aims. It is seen as the harmonization of individual and collective interests. Thus to
obey the general will is not a loss of freedom because individuals are ultimately
obeying themselves. When they obey the general will, they remain free and
collectively fulfil their part of the social contract. In the same manner, it can be said
that if laws are the product of the sovereign general will, each individual is really the
author of those laws and in this way one obeys oneself alone. The issue of force can
only enter when one refuses to obey the law.
Rousseau distinguishes between the “general will” and the “will of all” or “will of
everyone.” While the former is concerned only with the common interests, the latter is
concerned with the private interests, and is the sum total of individual wants.
43
However, if you take away from these desires their excesses and insufficiencies, the
common element remaining from the different desires is the general will.19 This is to
say that there would be no difference between the “general will” and “the will of all”,
if both have the same purpose, that is, the common good or justice. At this juncture,
Stumpf explains that the issue is that there is often a different purpose pursued by the
“will of all”, where “all” refers to the voters of a group, even if by chance they are in
the majority.20 This behaviour shows special or private interests as opposed to the
common interest. This leads to the collapse of the general will in the society, and the
enthronement of many wills as groups or factions suggest. For the general will to be
able to express itself, there must not be factions or partial societies within the state. In
Rousseau’s view, once the people are given adequate information and the opportunity
to deliberate, they would choose the path leading to the common good or justice. It is
the common good alone that can provide the setting for the greatest possible freedom
for each citizen.
Besides, if the law is made bearing the common good or justice in mind, as opposed
to special interest, then it truly expresses the general will. Therefore, anybody who
chooses to disobey or go against it is in error. Thus, “when a law is proposed, the
citizens are asked to decide whether it is in conformity with the general will, that is,
the common good or justice.”21 Thus, the important question reads: What is the
justification for forcing the citizens to obey the law? To attend to this question, it is
important to recall that the law is the product of the “general will,” which is, for
Rousseau the will of the “sovereign”, that is, the entire citizens of a given society. In
other words, to disobey the law is to disobey the general will which all people who
are parties to the social contract have agreed on for the realization of the common
44
good. When this happens one is forced to behave in accordance with a law one would
have been willing to obey if he had understood it clearly as requirements of the
common good, which alone provides him with the greatest amount of freedom. Only
under these circumstances, says Rousseau, is it legitimate to say that “he will be
forced to be free.”22
3.3.2 Rousseau on the Issue of Property
Rousseau is of the view that at the moment of the formation of the civil state, each
member of the community gives himself to it just as he is, with all the resources at his
command, including the goods he possesses. This means that possessions change their
nature as the possessor changes, to become property in the hands of the sovereign.
Just as the resources of the state are incomparably greater than those of an individual,
public possession is also, in fact, stronger and more irrevocable, although it is no
more legitimate. According to Rousseau, concerning the members of the state, the
state is master of all their property through the social contract which is the state’s acts
as the foundation of all rights. With regard to other powers, the state is master only by
the right of the first occupant which passed to it from private individuals.23 Granted
that the right of the first occupant is more real than that of the strongest, it does not
become a true right until the right of property has been established. This is because,
“Every man has naturally a right to everything that is necessary to him but by the
positive legal act which makes him the owner of certain goods he is excluded from all
the rest. He has his share, and must keep to it; he no longer has any rights over the
community’s goods.”24 This brings into limelight the reason why the right of first
occupancy, which is so delicate in the state of nature, is respected by all in the civil
45
state. It is not so much property belonging to others under this right, but instead
property not belonging to us, that we respect. Rousseau further marshals out the
conditions necessary in order to justify the right of first occupancy for a given piece
of land. In the first place, the land must not yet be inhabited; secondly, a man must
occupy only the amount he needs for his subsistence. Finally, possession must be
taken not by empty ceremonies but by work and cultivation: the only sign of
ownership which should be respected by others, in default of a legal title.
Considering the above conditions, Rousseau comes up with the following questions:
For if we grant that the needs of the first occupier, and the work he does, create a
right, have we not extended this right as far as it can go? How can it not be limited?
Does putting one’s foot on a piece of land suffice as a claim to ownership? If we have
enough strength to keep other men out of it for a while, does that suffice to deprive
them of their right ever to return? If a man or a nation lays hold of huge territories and
denies them to the whole human race, what else is it but an act of usurpation
deserving punishment, since it takes from the rest of mankind the dwelling-place and
the sustenance which nature gives them in common?25For Rousseau, when the
community receives the possessions of individuals, it does not despoil them, but
rather ensures that their ownership is legitimate, changing usurpation into genuine
right, and enjoyment of use into property. Thus, the possessors are thenceforth
considered as persons entrusted with public property and their rights being respected
by all members of the state and maintained against foreigners with all its power. Their
act of ceding ownership to the state has benefited not only the public, but also
themselves greatly. They have as it were acquired everything they have given. This
notwithstanding, Rousseau explains that no matter the manner the acquisition of
46
ownership is carried out, the right that each individual has over his property is always
subordinate to the right that the community has over everyone; otherwise, the social
bond would be lacking in firmness and the exercise of sovereignty would lack true
power.26
3.4 Rousseau on Law
The concepts of law and civil state are two different but inseparable terms in
Rousseau’s philosophy. These two concepts are meant to ensure man’s commodious
living in the society. In fact, there is no true civil state or society, no human
association or organization which can function without laws or rules (constitutions).
These latter guard and set the society in motion. According to Rousseau, while the
social contract gives rise to the existence and life of the body politic, the law keeps
directing and moving it.27 Law is not just the discipline and profession concerned with
the customs, practices and rules of conduct of a community or society that are
recognized as binding by the community. More importantly, law is the rule
established by the whole people for the good of the whole. It is a rule established
by authority or custom for regulating the behaviour of members of a
community or country. Hence, what is good and in conformity with order is so by
the nature of things and independently of human conventions. Some theorists argue
that all justice comes from God; he alone is its source, and if we know how to attain it
at so great a height, we should need neither government nor laws. Rousseau on his
side entertains no doubt as regards the existence of absolute justice emanating from
reason alone. He admits that this justice can only be accepted among us on natural
grounds. Humanly speaking, in default of natural sanction, the laws of justice are
47
ineffective among men. They merely benefit the wicked and harm the just when the
just man observes them towards everyone while no one reciprocates such towards
him. Consequently, Rousseau writes:
Conventions and laws are necessary, therefore, in order to combine
rights with duties, and to enable justice to fulfil its object. In the state
of nature, in which everything is common property, I owe nothing to
others, having promised them nothing; the only things I recognize as
belonging to others are those that are no use to me. It is not the same in
the civil state, where all rights are defined by law.28
Furthermore, Rousseau asks: what then, finally, is a law? For him, as long as we
remain satisfied with the definition of law in the metaphysical terms alone, we shall
continue to get it wrong and we shall be no closer to knowing what the law of a state
is all about, even when we have defined a law of nature. In his words, the general will
cannot relate to a particular object. Every particular object of will is either inside the
state or outside. When the whole people make a ruling for the whole people, it is
considering itself alone. If there is a relationship, it is between the whole object from
one point of view and the whole object from another, the whole remaining undivided.
The matter on which the ruling is made is general, just like the will that makes it.
Hence, he writes:
When I say that the objects of laws are always general, I mean that the
law considers the subjects of the states as a collectivity and actions in
the abstract, but never a man as an individual, nor any particular
action. Thus the law can rule that privileges will exist, but it cannot
bestow them on any person by name; the law can create different
classes of citizen, or even define the qualifications for membership of
these classes, but it cannot name this man or that man as members; it
can establish a monarchical government and hereditary succession, but
cannot elect a king or name a royal family. In a word, no function
relating to an individual object belongs to the legislative power.29
At this juncture, it is now clear that we can no longer ask who has the right to make
the laws, since they are acts of the general will. We cannot ask also whether the ruler
48
is above the law, since he is a member of the state. To question whether the law can
be unjust is out of the case, since no one can be unjust towards himself. Lastly, we
cannot ask how possible it is to be free and subject to the laws, since they are nothing
but the record of our acts of will. Considering this, Rousseau submits that anything
ordained by man on his own account, no matter his position, is not a law, since the
law combines universality in its object with universality of will. Even what the
sovereign ordains concerning a particular object is not a law, but a decree. In addition,
Matthew notes: “law, being the act of the general will, means then that law actually
issues from the people – the body-politic. It results from the generality of will and the
generality of object… This is because personal order does not declare the people’s
general will”30
In the words of Rousseau, any state that is governed by laws is called republic, no
matter the form of its administration. For it is only in such a case that the public
interest governs, and all things public, count for something.31 Again, any state
controlled by laws as republic is concerned with the “public thing” – res publica, that
is, with public interest. Hence, Rousseau submits that laws properly speaking are only
the conditions of civil association. The people, being subject to the laws, must create
them: it is the associates who have the right to determine the conditions of society. At
this point, Rousseau questions how the people can determine these conditions. Has the
body politic some organ by which to articulate its wishes? Who will give it the
foresight it needs to produce acts of will and publicize them in advance… How can
the blind multitude, often ignorant of what it wants, because it seldom knows what is
good for it, accomplish by itself so large and difficult an enterprise as a system of
legislation?32
49
Rousseau considers the general will to be always right, but the judgment guiding it is
not always enlightened. The general will needs to be shown things as they are and
sometimes as they ought to appear. It needs to be taught which path is the right one
for it to follow, to be preserved from the seductiveness of particular wills. It should
also be told of those remote and hidden dangers which counterbalance the attractions
of visible, present advantages. According to him, individuals can see the good and
reject it; the public desires the good and cannot see it. In this case, both need
directions. While one side must be obliged to shape their wills to their reason, the
other must be taught the knowledge of what it wants. Above all, public enlightenment
leads to the union of understanding and will, in the social body. The parts therefore
are made to work together, which results to the greater strength of the whole. This
shows the importance of a legislator in the process of enacting laws that will bind the
parts together for the stronger whole. The whole cannot stand without the parts
agreeing to work in tandem for a common aim, and this can only take place
effectively when it is anchored on law.
3.5 The Legislator and the People
Talking about the legislator, Rousseau is of the opinion that to discover which societal
rules suit nations best, a superior intelligent mind would be required, who will be able
to see all human emotions without experiencing any of them. This mind would not
have any relationship with our nature but knowing it to its depths; enjoying its own
happiness independently of us, and yet ready to occupy itself with ours. Lastly, it
would have, in the fullness of time, to look forward to a distant glory, and carry out its
work in one century and to enjoy its achievement in the next.33 For him, it is the gods
50
that are needed to give laws to men. Thus, he questions if it is true that a great ruler is
rare; what of a great legislator? According to him, the legislator is the inventor of the
machine, the ruler is the mechanic who sets it up and makes it work. Quoting
Montesquieu he comments: “When societies are born, it is the leader of republics who
create their institutions, and afterwards it is the institutions that produce the leaders of
the state.”34 The man who tries to undertake the establishment of a people has to feel
himself capable of changing the nature of man. He should be able to transform each
individual, who in himself is a perfect, isolated whole, into a part of a larger whole
from which the individual receives his life and being. He must deprive man of his
own strength so as to give him strength from outside, which he cannot use without the
help of others. The more these natural strengths are destroyed and reduced to nothing,
the more powerful, durable and perfect the society that is constituted too. When each
citizen is nothing and cannot do anything except through others, and when the
strength given by the whole is equal or superior to the natural strength of all the
individuals together, the legislation can then be said to have reached the nearest point
to perfection which it can.
The legislator occupies in every respect an extraordinary position in the state. If he
should do so by virtue of his genius, he does so no less by virtue of his office, and it is
not sovereignty. The function of constituting the republic does not form part of its
constitution. However, it is specific and superior, having nothing in common with
human authority. Hence, Rousseau writes:
If he who has control of men ought not to control the laws, then he
who controls the laws ought not to control men: otherwise his laws
would minister to his passions, often doing no more than perpetuate his
51
unjust actions; and he would never be able to prevent his interests as an
individual from impairing the sanctity of the work.35
It is the stand of Rousseau that he who frames the laws, should not have any right of
making law. The people cannot divest themselves of these incommunicable rights,
even if they wished so, because according to the fundamental pact, only the general
will can be binding on individuals. It can never be certain that something willed by a
particular person is in conformity with the general will until it has been submitted to
the free vote of the people. For him, if wise men try to speak their language to the
common people instead of its own, they cannot make themselves to be understood.
There are innumerable ideas which cannot be translated into the language of the
people (the popular language). For the people in the process of formation to be able to
appreciate the principles of sound policy and follow the fundamental rules of reasons
of state, it would be necessary for the effect to become the cause. The spirit of
community, which should be the result of the constitution, would have to guide the
constitution itself. Men would have to be what the laws have made them before the
existence of laws. Hence, the legislator is unable to employ either force or argument
and as such should have recourse to another order of authority, which can compel
without violence and win assent without arguing. This is the reason why the founders
of nations have been forced in every period to resort to divine authority and attribute
their own wisdom to the gods, so as to have their people who are subject both to the
laws of the state and those of nature, recognize the same power in the creator of man
and in the creator of society, obeying freely and submitting meekly to the enforcement
of public felicity.
52
While considering the people, Rousseau is of the opinion that the wise creator of
institutions will not begin by drafting laws good in themselves. He will first consider
the people for whom they are intended, to know whether they are capable of receiving
them. This he likens to an architect who, before constructing a great building, first
studies and probes the soil to see whether it will bear the weight of the building. It is
as a result of this that Plato refused to give laws to the Arcadians and Cyrenians, since
he knew that these two nations were rich and could not tolerate equality.36 For
Rousseau, people are amenable only when they are young; in old age they became
incorrigible. He notes: “once customs are established and prejudices ingrained, it is a
dangerous and futile enterprise to try to reform them; the people cannot bear to have
the disease treated, even in order to destroy it like those stupid and fearful patients
who tremble at the sight of the physician”37
Furthermore, just as some illnesses shake up men’s minds and deprive them of the
memory of the past, there are also periods of violence during the lifetimes of states,
when revolutions have the same effect on nations as certain medical crises on
individuals, and revulsion against the past acts like a loss of memory. However, such
periods are rare and exceptional, and the reason for the exception lies often in the way
in which a particular state is constituted. Thus, the state, as long as it is merely
uncivilized, can gain its freedom, but cannot do so when the springs of social action
are worn out. It can be destroyed by civil strife, but can no longer be revived by
revolution. The moment its chains are broken, it falls into fragments, and no longer
exists: thereafter it needs a master, not a liberator.38 People must therefore bear in
mind that liberty can be acquired and never regained. There is a time of maturity in
nations as in men, making it necessary to wait before imposing laws on them. This is
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because the maturity of a nation is not always easy to recognize, and if action is taken
prematurely, it will amount to a failure. Besides, certain nations can be disciplined
when they are born, others cannot even after centuries. It is based on this that
Rousseau declares: “The Russians will never have a true political order, because they
were given one too early. The genius of Peter the Great was for imitation; he did not
have true creative genius of the kind that makes something out of nothing. Some of
the things he did were good, but the majority of them were misplaced”39Sometimes,
such misplacements lead to the death of others, despite their right to life.
3.6 The Right to Life and Death
On the issue of the right to life and death in the civil state, Rousseau asks how
possible private individuals, lacking the right to dispose of their own lives, can
transfer a right that they do not have to the sovereign. For him, every man has the
right to risk his own life in order to preserve it. He questions: “Has it ever been argued
that a man is guilty of suicide if, in order to escape from fire, he jumps out of the
window? Has such a crime ever been so much as imputed to a man who, knowing the
risk as he boards the ship, perishes in a storm at sea?”40 The aim of the social treaty is
to preserve the contracting parties. He who wills an end wills the means to that end:
and the means in this case necessarily involves some risks, and even some loss. With
regard to this he avers:
He who wills that his life may be preserved at the expense of others
must also, when necessary, give his life for their sake. But the citizen
ceases to be the judge of occasions on which the law requires him risk
danger; and when the ruler has said: ‘It is in the state’s interest that you
should die’, he must die, because it is only on this condition that he has
hitherto lived in safety, his life being no longer only a benefit due to
nature, but a conditional gift of the state.41
54
In the broad sense, death penalty for criminals may be considered from the same point
of view as above. It is to avoid being the victim of murder that we consent to die if we
become murderers. According to this pact, our goal is not to give up our lives, it is to
preserve them. However, every wrongdoer, in attacking the rights of society by his
crimes, becomes a rebel and a traitor to his country. He ceases to be a member of it
and even making war on it by violating its laws, as such, the preservation of the state
becomes incompatible with his. Thus, when a criminal is put to death, it is as an
enemy rather than as a citizen. His trial and the sentence are the proofs and the
declaration that he has broken the social treaty and is consequently no longer a
member of the state. Inasmuch as he has infringed the contract, he must be removed
from it, by exile or by death, so long as he is a public enemy. An enemy of this kind,
according to Rousseau, is not a personified abstract entity, but a man, and in such a
case the right of war is to kill the vanquished. Since it is upheld that the condemnation
of a criminal is a particular act, therefore, it is not the sovereign’s function to
condemn him, but a right that it can delegate even though it is not able to exercise it.
Rousseau is of the opinion that frequent use of the death penalty is always a sign that
the government is feeble or lazy. For him, there is nobody so wicked that he cannot be
made useful in some respect. Hence, the right to inflict death, even in order to set
example, applies only to a man whose life cannot be preserved without dangers.
On the other side of the coin, as regards the right of pardon or of exempting a criminal
from the penalty decreed by law to which the judge has sentenced him, it is the sole
right of an authority superior to judge and law, that is, the sovereign. Its rights in this
matter are not so clear and as such should be used very seldom. However, in a wellgoverned state, there are few punishments, not because pardons are often granted but
55
because there are few criminals. Thus, the increase in crimes in a state shows its
declining and decaying nature. Having said this, we now consider the relevance of
Rousseau’s theory of law and civil state to democracy in Nigeria.
56
End Notes
Samuel E. Stumpf, Philosophy: History and Problems, 5th ed. (New York: Mc Graw-Hill
Inc., 1994), 291.
1
2
Stumpf, Philosophy: History and Problems, 292.
3
. Jean-Jacques Rousseau, The Social Contract, trans. Christopher Betts (New York:
Oxford University Press, 1994), 45.
4
John Locke, Two Treatises of Government and a Letter Concerning Toleration
(New Haven: Yale University Press, 2003), 102.
5
Matthew I. Nwoko, Basic Political Theories: Ancient to Contemporary (Enugu:
Snaap Press Nigeria limited, 1988), 116.
6
Immanuel Kant, “The Philosophy of Law” in The Great Legal Philosophers:
Selected Readings in Jurisprudence. Ed. Morris Clarence (Philadelphia: University of
Pennsylvania Press, 1959), 253.
7
Jean-Jacques Rousseau, Basic Political Writings of Jean-Jacques Rousseau, trans.
Donald A. Cress (Cambridge: Hackett Publishing Company, 1987), 67.
8
9
Rousseau, The Social Contract, 54.
Rousseau, The Social Contract, 54-55.
10
Locke, Two Treatises of Government and a Letter Concerning Toleration, 141-142.
11
Rousseau, The Social Contract, 55.
12
Rousseau, The Social Contract, 55.
13
Friedrich G. W. Hegel, “Philosophy of Right” in The Great Legal Philosophers:
Selected Readings in Jurisprudence. Ed. Morris Clarence. (Philadelphia: University of
Pennsylvania Press, 1959), 309.
14
Rousseau, The Social Contract, 56.
15
Rousseau, The Social Contract, 59.
16
Rousseau, The Social Contract, 56-57.
17
Rousseau, The Social Contract, 57.
18
Rousseau, The Social Contract, 58.
57
19
Rousseau, The Social Contract, 66.
20
Stumpf, Philosophy: History and Problems, 297.
21
Stumpf, Philosophy: History and Problems, 297.
22
Stumpf, Philosophy: History and Problems, 298.
23
Rousseau, The Social Contract, 60.
24
Rousseau, The Social Contract, 60.
25
Rousseau, The Social Contract, 61.
26
Rousseau, The Social Contract, 62.
27
Rousseau, The Social Contract, 73.
28
Rousseau, The Social Contract, 73.
29
Rousseau, The Social Contract, 74.
30
Nwoko, Basic Political Theories: Ancient to Contemporary, 122.
31
Rousseau, The Social Contract, 75.
32
Rousseau, The Social Contract, 75.
33
Rousseau, The Social Contract, 76.
34
Rousseau, The Social Contract, 76.
35
Rousseau, The Social Contract, 77.
36
Rousseau, The Social Contract, 80.
37
Rousseau, The Social Contract, 80.
38
Rousseau, The Social Contract, 80.
39
Rousseau, The Social Contract, 81.
40
Rousseau, The Social Contract, 71.
41
Rousseau, The Social Contract, 71.
58
CHAPTER FOUR
A JUXTAPOSITION OF ROUSSEAU’S CONCEPT OF LAW AND CIVIL
STATE AND NIGERIAN DEMOCRACY
4.1 Understanding democracy in Nigeria’s Civil Society
Rousseau’s theory of law and civil state is established to liberate man from the
precarious condition of the state of nature. Man, as an individual in the state of nature
is prone to so many problems beyond his control. Thus, he lives in perpetual fear of
what the next moment will offer, since there is no rule of law or a constituted
authority to fall on when the need arises. Again, in the state of nature, the obstacles to
man’s self-preservation are too great to be overcome by individual strength to
maintain himself in this state. Hence, one gets exhausted while protecting his property
and seeking for his own preservation. This is because there are always those bigger,
stronger and more aggressive than others. With regard to this, the original state can no
longer endure and there is need to form an association to tackle all these problems.
Thus, Rousseau achieved this with the formation of the civil state. This of course, is
founded on agreement which has law as its driving force. Since there is no general
will with a particular object, the object of a law therefore must equally be general with
regard to the whole of the people. This means that the law is binding on everybody
both the rulers and the ruled. It is a condition of civil association. Having said this, it
is pertinent to pose these questions: Of what relevance is Rousseau’s theory of law
and civil state to democracy in Nigeria? How can it impact positively to the
development of the country taking cognizance of the “modern democracy”
challenges? There is no doubt that Rousseau’s idea of law and civil state contributed
immensely to liberalism in Europe during the 18th century French Enlightenment, in
60
the same vein, it can help to improve the development of democracy in Nigeria today
if properly applied. This feat could be achieved in the areas of constitution-making,
leadership, common good comprising such aids like schools, water supply, health care
services, road networks, and power supply among others.
It is very obvious that enough time and effort have been devoted to studying and
writing about African states in post-colonial era, of which Nigeria is at the centre of
the scene. The findings so far made showed that the problem is neither the lack of
human nor natural resources but the abuse or misuse of these resources. This often
results from maladministration, poor leadership quality, and personal aggrandizement
always orchestrated by despotic, visionless and reckless political office holders who
have succeeded in increasing the burdens of the citizens rather than alleviating them.
It is unfortunate that Nigeria, (the Giant of Africa) has continued to show her strength
as giant of Africa since her independence in 1960 by taking the lead in these
conspiracies against human and natural resources in the state. Thus, quoting G.
Ehusani, Oraegbunam notes that “Nigerians have been stripped naked by corrupt,
selfish, greedy and callous elites. They have been humiliated, pauperized and reduced
to a state of destitution…”1 Granted that most of Nigeria’s independent era have been
dotted by military misrule and dictatorship, the remaining part is marked by
plutocracy though under the guise of democracy; it is ‘pseudo-democracy.’ Nigeria is
a federal republic modeled after the United States with the president exercising the
executive power. Nigerian government is also influenced by the Westminster system
modeled in the composition and management of the upper and lower house of a
bicameral legislature. The president of Nigeria is the head of government, head of
state and head of a multiparty system. The politics of Nigeria takes place within a
61
framework of a federal, presidential, representative democratic republic, in which the
executive power is exercised by the government. The government also holds the
legislative power together with the two chambers of the legislature- the house of
Representative and the Senate. The two chambers together make up the law-making
body in Nigeria called the National Assembly, which serves as a check on the
executive arm of government. Nigeria also practices the theory of separation of
powers.2
It is unfortunate that in spite of all the practiced systems in a democratic society like
Nigeria to have the best of government and politics, we have not got it right. This is
because those who have what it takes to lift the country to the next level are being
sidelined and silenced by the power drunken heartless politicians who have no
intention of liberating this country from her socio-political and economic problems
which it has suffered since independent but are only after their private gains. With
regard to this, Njoku observes that industrialized countries can boast of an educated
citizenry that is conscious of its franchise and could make a responsible choice. They
can boast that people who engage in politics are of the right mind and intention, with
the right education and discipline to direct the affairs of their people. For him, the
story is not the same in many developing countries like Nigeria, where the political
scene is flooded with many people who are not only floored by their ignorance in the
trade they profess but who, in the final analysis, have not the slightest intention to
care for the well-being of the people they purport to lead or represent.3
Although our country is said to be practicing a democratic system of government,
there is a big difference between what we practice and what democracy stands for.
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The word democracy comes from the Greek words – demos (the people) and kratein
(to rule) meaning literally ‘rule by the people.’ It is a system of voting for a
government through a free and fair electoral process. It is a system of government that
ensures and respects the human rights of all citizens, where the rule of law applies to
every citizen of the state in equal measure. It is a representative government whereby
the citizens elect those to represent them in government. According to Abraham
Lincoln, democracy is a government of the people by the people and for the people.
However, it has assumed a different definition in Nigeria altogether as a government
“off the people, buy the people and force the people.” What this means is that the
citizens are forced and bought by our leaders to vote them into offices and when they
finally assumed those high places of honour, they now fence and ward off these
people that voted them into power only to connive with few selected elites to cripple
the country’s treasury. In a democratic state, the government is bound by the consent
of the governed and is accountable to the electorate. In other words, sovereignty
belongs to the people from whom government derives its powers and authority. There
is no doubt that Nigeria presently is constitutionally based on the principles of
democracy and social justice but whether they are being practiced in the real sense of
the word remains a fundamental issue which has been boggling the minds of every
well-meaning Nigerian. Suffice it to note that since Nigeria’s transition from military
to democratic rule in 1999, there have been questions both locally and internationally
about what makes our system of governance democratic. Since 1999 till now, Nigeria
has practiced sixteen years of uninterrupted democracy, yet the dividends of
democracy could not be felt by the citizens. No wonder Cardinal Olubunmi Okogie
(the Catholic Archbishop of Lagos) sometime in 2004 rated the federal government
63
low on democracy dividends. In the words of J. Odey, “instead of reaping the
dividends of democracy, we are pinning away under the grips of lootocracy - a
government of the looters by the looters and for the looters.”4 In a democratic
government power flows from the people to their elected officials, who hold power
only temporarily. However, one question that we cannot fail to ask ourselves is
whether our country Nigeria can truly be considered a democratic state. For even in
principle we have failed to uphold the very tenets upon which the concept of
democracy is predicated.
Democracy is built on the equality of the people, their freedom to associate with one
another for the realization of their ideals as well as the defence and promotion of their
interest. It also has to do with the citizens’ freedom to choose between the different
political platforms of various political parties and candidates. Nevertheless, one of the
problems with Nigerian democracy is that people have been effectively, continuously
and consciously disenfranchised by their own circumstances on one hand, and on the
other hand by their leaders’ perfidy. Hence, Nigeria is trailing to a state where
democracy is being practiced without democrats, and elections are being conducted
with little or no regard for the electorates. The ballots are not respected by the
government and the prices the people need to pay to protect them are extremely high.
Quoting Ray Ekpu, J. Odey writes: “How can democracy sit on the same table with
AK47? Democracy with a gun in hand is dictatorship…if arms win, then we lose; if
politicians use arms to gain power that, too, is a coup, one that is not different from
the one by the soldiers.”5 Our elections have been marred with a lot of electoral frauds
and flaws and the necessary policies together with enforcement mechanism must be
put in place to improve and strengthen our democratic process and democracy. The
64
inability to conduct a free and fair election in Nigeria is really hampering the
development of the country and its journey towards a stable democracy. Indeed, it is
not merely the voting process that matters, in democracy the ballot papers and their
respective tallies must also be secured from any tampering. To ensure a sound
democracy the vote of every electorate must count and of course the rule of law must
be followed to the letter. It is only when this is done can the common good in the state
be taken care of appropriately.
4.2 Common Good: The End of a Civil Society
Human being by nature remains incomplete and depends on others for the full
realization of his humanity. Thus, the society exists for human nature with its needs
and capacity for completion in the attainment of full humanity. The order of being of
society is found in the conditions prescribed by the person’s individual and social
nature for the full attainment of his humanity. Hence, there is the co-operation of all in
the society for the realization of mutual completion or societal existential ends. This
co-operation or joint force is very important so as to tackle the obstacles which
according to Rousseau are too great to be overcome by an individual strength in order
to maintain himself in the state of nature. The common good is the end of the cooperation of all members, or the end for which society exists; it is an end, that is, the
temporal welfare for the community taken both collectively and distributively.6
Common good is the sum of those conditions of social living whereby
men are enabled more readily and more fully to achieve their
perfection and appointed end…It comprises such aids as schools,
hospitals, social services, energy supply, road networks, the legal
order…”7
65
It is a theory that is devoid of selfishness but is geared towards the good or benefit of
everybody (the whole). Considering the social nature of man, the good of each
individual is necessarily related to the common good. This is Rousseau’s goal in his
quest for a civil state, a state where each person while working for the good of the
whole community works for his own good. This is the end of a democratic society. It
concerns the life of all; it calls for prudence from everyone and even more from those
who exercise the office of authority. Common good presupposes respect for the
person as such. Public authorities are bound to respect the fundamental and
inalienable rights of the human person in the name of the common good. It requires
the social well-being and development of the group itself. Development is the epitome
of all social duties. Hence, it is the proper function of the authority to arbitrate in the
name of the common good, between various particular interests. It should be made
accessible to each what is needed to lead a truly human life. Therefore, Nigerian
common good should comprise basic human needs as schools, electricity, hospitals,
suitable information, right to establish a family, education and so on.
However, it is quite appalling that Nigerian leaders and political office holders who
swear and promise to protect the common good of the entire citizenry assume offices
only to do otherwise. They make a public declaration of their assets on assumption of
office. This is to ensure that they do not spend more than some specified amount of
money or engage in private businesses while in office. These and other numerous
institutional framework are put in place to ensure transparency in the protection of the
common good for the optimum good of all in a democratic society like ours, although
little or no success is recorded at the end. The reality of the situation remains that we
are cheating ourselves and have refused to tell ourselves the truth in the final analysis.
66
Both the leaders and the led that embark on acts against the common good are acting
against the interest of the polity and the nerve centre of nationhood. If we cannot
identify our common good as common, then, we do not exist as an entity. If we do
exist and wish to continue to exist as a country then the protection of our common
good is a sine qua non.
It is pertinent to note that the civil or political society is formed for the common good.
Hence, each human community possesses a common good which permits it to be
recognized as such. The complete realization of common good is found in the political
society. For J. Maritain, political society…is a concretely and wholly human reality,
tending to a concretely and wholly human good- the common good.8 It is unfortunate
that Nigeria as a democratic society which should be oriented towards the pursuit of
common good which is the goal of Rousseau’s civil state is still lagging behind in this
area because of selfishness on the part of our leaders. The purpose of politics is to
bring about the common good. Hence, the issue of common good is central in politics.
It is good for all in the state, that is, what will benefit all and not just certain
individuals.
It is the duty of the governments and their institutions to maintain and promote the
common good. This is the only condition that is in an appropriate sense equal to
everyone’s advantage. Thus when the government thwarts the common good, it has
lost the foundation of justice and as such have abused the common good exercise.
“Nothing is more dangerous than the influence of private interests in public affairs,..”9
In fact, the worst corruption in the state is the converting of common good to private
good. It weakens and makes the state vulnerable. Hence, when the social tie begins to
67
loosen, and the state weaken, when particular interests begin to make themselves felt,
and smaller groups influence the greater ones, then the common interest is no longer
unaltered. It is met with opposition, the votes are no longer unanimous, and the
general will, will no longer be the will of all.10 The helps of the common good are
meant to assist men in the realization of their tasks and existential ends. Common
good is to preclude antisocial impulse in human nature from interfering with the rights
of others and with the social order. It is devoid of private or group interest but rather,
is being planned and pursued for the well-being of the entire people and for the
smooth running of the society.
The common good that is to be made available for mutual completion is determined
by the nature of society. Besides, it is the responsibility of all to work and ensure the
realization of the common good. The nature of a human being needs completion yet it
is entirely a person’s responsibility to realize his existential ends. Thus, the common
good is a horizon of co-operative search for authentic human values. It is a task to be
achieved; it is not a piece of cake to be devoured, as such, the Nigerian slogan
“national cake” which is used to refer to the common good is a misnomer and out of
place.11 Common good is the noble aim sought in political formation. Fathers of the
Second Vatican Council encourage citizens to cultivate a generous and loyal spirit of
patriotism, but without narrow-mindedness, so that they will always keep in mind the
welfare of the whole human family which is formed into one by various kinds of links
between races, people and nations. They should recognize the legitimacy of different
views about the organization of worldly affairs and show respect for their fellow
citizens, who even in association defend their opinions by legitimate means. Political
parties, for their part, must support whatever in their opinion is conducive to the
68
common good, so that all citizens will be able to play their part in political affairs.
Civil and political education is vitally necessary for the population as a whole and for
young people in particular, and must be diligently attended to.12
Above all, the issue of common good is not something that should be left for
governments all alone. It is a co-operative work that demands governments’ efforts,
institutions’ co-operate bodies’ and individuals’. Therefore, every Nigerian must join
hand in this fight for the provision and realization of common good which creates
harmony, freedom, security, peace and other social enhancements for a stable
democracy and a well-ordered society.
4.3 Constitution-Making in Nigeria
One of the obvious reasons why people enter into a social contract according to
Rousseau is to device a form of association which will defend and protect the person
and possessions of each associate with all the collective strength, and in which each is
united with all, yet obeys only himself and remains as free as before. In other words,
law and civil state which are made possible through the social contract means have
the protection of the people and their possessions as their end. This is done to avoid
the inconveniencies of the state of nature one of which is the lack of possible law to
which all the individuals should make their references. Suffice it to note that it is this
need for law as a guide to all that is behind the whole idea of constitution-making. In
every country there are agreed principles, rules and regulations that determine how
that country should be governed or run. It is these rules that could serve as the
constitutions of the country. Hence, a constitution could be seen as a set of laws and
conventions that determine the structure and functions of the three organs of
69
government.
It also determines the relationship among the three organs of the
government as well as the methods of election and appointment.13 Constitution is a
body of rules, written or unwritten, in accordance with which the powers of
government are distributed and exercised. In Nigeria once enacted in written form, the
constitution becomes the fundamental law of the country, unlimited by any other
authority.14 Besides, constitution is meant to stipulate the powers of government,
duties of citizens, state penalties, for erring parties and above all, provides protection
for all citizens. Similarly, it is made, re-enacted, and reviewed to suit certain sections
or the whole. Thus, the basis and inspiration for any nation is its constitution for it
reveals the principles of its founders, and gives direction to their successors.
Nigeria as a nation has had many constitutions which include Clifford’s 1922,
Richard’s 1946, Mc Pherson’s 1952, Independent Constitution 1960, Republican
1963, 1979, and the present 1999 which is an amendment of the 1979 constitution.
The existence of these constitutions defines the society with many elements – the
media, police, government, armed forces, citizenry among others with their duties and
obligations clearly stated.15 It is unfortunate that Nigerian constitution has been
paralyzed and rendered ineffective by our leaders who will always bend the laws to
suit and favour themselves. At this point, it becomes necessary to ask if the laws in
the country are enacted to favour some classes of citizens above others, or better still,
are these laws meant to be obeyed by some citizens and not all? If the answer to this
question is in the negative, what then is the essence of the immunity clause that is
making our leaders more of defaulters than custodians of laws? If not, where lies the
rule of law that talks of due process of law or equality before the law? Here, we have
to observe that while Rousseau’s idea of law is binding on all citizens collectively (the
70
rulers and the ruled), that of Nigeria is always on the masses and the ruled. We must
observe that constitutionalism in Nigeria is flawed as it is not the people’s
constitution; so it is not a sovereign one freely entered into by the state, the leaders
and the led. The truth of the matter is that our leaders now make laws to favour their
stay in offices and to cover their misdeeds while the yearnings of the ordinary citizens
are swept under the carpet. They even take oaths not to divulge one another’s crimes
even when they are out of the offices. Today our leaders do whatever they like and
commit crimes of all sorts without being punished, instead, they are celebrated and
given national awards in the long run. But the ordinary crying out of a poor citizen
earns him a jail term, yet we talk of freedom and equality in the country. This is
against the spirit of law and civil state as advocated by Rousseau which culminates in
the general will. When something like this happens, one begins to wonder if there is
anything like the rule of law which could ensure fair and equal treatment of all in the
state. Thus, Rousseau states: “The constitution of a state is made truly solid and
lasting if the fitness of things is so carefully observed that natural relationships and
the laws meet at the same points, the latter doing no more, as it were, then confirm,
accompany and rectify the former.”16 It is unfortunate that our legislators and jurors,
whom the responsibilities of making, amending, adjudicating and interpreting the
laws rest on their shoulders have over the years proven to be schemers and unreliable
people in carrying out their duties. Instead of the law makers enacting and enforcing
laws to serve the national interest they do such most often to the benefit of those in
power while the common citizens are left at the mercy of the leaders. This still boils
down to the corruption menace which has been rocking the country since her
independence.
71
Constitutionally, the three arms of government suppose to have their stipulated
functions for the smooth running of the country. It is unfortunate that the executive
arm now tries to hijack the whole powers and to dictate the pace for the other arms of
government. This is as a result of the immunity clause and other dubious laws that are
reserved to the ruling class to get over their subjects and such is not good for
democracy. According to Oraegbunam,
the history of constitution-making in Nigeria has been dogged and dotted
with controversies and compromises. Not the least of these shabby
compromises was the forcible adoption of, for instance, a constitution that
has turned out to be a patchwork of incoherent and contradictory rambling
bristling with mischief and miscreancy.17
Nigeria, today at the age of fifty-five years has come of age. Nevertheless, it seems
we are still under some sort of control, fueled by ‘colonial dictators.’ This is made so
because of the manner our leaders have designed and implemented the project.
We must at this juncture observe that the western nations we often copy their policies
have been in democracy for over two hundred years, and their constitution is still
intact. They have adequate provision for the protection of all elements of their society
enshrined in their constitution and make sure that all the provisions are well
implemented. On the other hand, ours, which is just a mere journey of a mile, has
been marred by corruption and all sorts of irregularities. This is not expected of a
nation that tends to progress in its developmental processes. It is important to note
that Nigeria has failed in implementing virtually one third of the provisions of the
constitution. Instead, we are pinning with constitutional review and amendment.
However, the truth is not far, if we argue that the numerous crises and conflicts we are
having at the religion, political, socio-economic and ethnic levels are based on the
inability of the constitution to address the national question. It is the laws that are
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enacted to ensure peace and order that give the social contract a stand, a backbone, as
we conceived from Rousseau. It was this that made the idea of the civil society a
reality. For him, laws, properly speaking are only the conditions of civil association.
“The better a state is constituted, the higher is the priority given, in citizens’ minds, to
public rather than private business.”18 Therefore, when the country’s constitution is
broken, overlooked or deprived of its legal teeth, then our society will be more of a
state of nature than a civil society. To quell this blazing fire of destruction that is fast
engulfing the nation, constitution-making process in Nigeria should put on a more
democratic face. It must be made participatory and operative so that freedom,
equality, justice and fairness which is the goal of Rousseau’s civil state and law will
take root in the country. Granted this may seem impossible due to the callous and
insatiable nature of man, but it is a possibility and is what a democratic society stands
for.
4.4 The Leadership Question
It is certain that in Rousseau’s civil state there is a body of persons upon which every
one surrenders his natural right or liberty, that is, the people (the sovereign). It is this
body that constitutes the leadership. This total surrender to all is mutually orientated;
meaning that one has the right over all as they have over one. Thus he gains the
equivalent of everything he seems to have lost, and even greater power to preserve
what he has. Nevertheless, the term of reference as regards the function of leadership
in a civil society revolves around the promotion of the general will. Leadership, which
should be the capability to lead and co-ordinate people effectively for the realization
of a common desirable end, has turned out to be a family or party affair. It is no
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longer for service but an opportunity to command worships from the people. In the
words of Njoku: “Most of the time, leaders or politicians struggle and present
themselves as worthy for such a responsibility; but it is not all the time that
contestants realize that leadership is a huge and tasking service.”19
A person cannot be a leader in the real sense of the word unless he has the support and
good will of those he leads. To get the support of those he leads, he has to identify and
feel with them. It is by so doing that he can know their problems and how to solve
them while making sure that their interests are always protected. Leadership style
plays a key role either in uplifting any human society or holding down its wheel of
progress. One of the problems that are facing African countries today, especially
Nigeria, is the problem of leadership. According to Chinua Achebe:
The trouble with Nigeria is simply and squarely a failure of leadership.
There is nothing basically wrong with the Nigerian land or climate or
water or air or anything else. The Nigerian problem is the willingness
or inability of its leaders to rise to the responsibility, to the challenge
of personal examples which are the hallmarks of true leadership.20
After the country’s independence in 1960, there has been power struggle, the leaders
who jointly struggled for the independence began to quarrel and struggle among
themselves. This gave rise to an intense struggle among the elites of the ethnic groups
in Nigeria, especially Hausa Fulani, Igbo and Yoruba. This is fueled by the sharing of
national resources. It is this regional power struggle and disagreement among the
elites that resulted in political instability and finally gave birth to the first Nigerian
coup of 1966 followed by the tragic civil war which lasted from 1967-1970. From
1960 Nigeria gained her independence till now, it is among the least to be reckoned
with in Africa and the world at large in terms of development. This boils down to the
problem of bad leadership. There is misplacement of priorities, faulty process and
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procedures of appointment, poor economic development, lack of proper
accountability among others by our leaders. Again, the autocratic and dictatorial
nature of decision making has left the country’s political society in disarray. The
contours of Nigerian leadership terrain are still made up of military dictatorship and
political subterfuge. Hardly do our political elites know that leadership is for service
and not for selfish aggrandizement. Hence, in our present democratic set up, all
energies needed for democratic dividend delivery and rapid economic recovery of the
country’s economic infrastructure after decades of military decimation are now
deployed into a creeping war of succession. Owing to the fact that politics has become
lucrative, organizations and conspiracies are formed either for the return of
incumbents or the removal of same.21 The point is that our leaders are visionless,
conscienceless and brutal in their administrations. They have little or no regards for
the other citizens; hence, they will always have them dehumanized without any
qualms of conscience. Patrick G. Finegan presents clear pictures of Nigerian leaders
when he said:
I have known many great men…I kill the brave ones because they
pose the threat of independent thought. I kill the intelligent ones
because they might figure out what has happened and what should
happen. I kill the creative ones because they are unpredictable when
their plans are stopped by my restrictions. I kill the most faithful ones
because once faith is lost, no matter the reason, men seek vengeance
for their deception. I kill the philosophers because they know the truth.
I kill the party theoreticians because they see my heresy. I kill the most
gentle because they might attract individual support by their meek
trustworthiness. I kill the strong out of fear and envy. 22
This is a perfect image of Nigerian government. It is Nigerian leadership in action.
This is what they do to get rid of all who can stand their grounds and call a spade a
spade by criticizing their nefarious activities so as to influence our society for the
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better. It is important to observe that many Nigerians have paid with their lives in the
hands of these blood sucking and conscienceless leaders, just because, they wanted a
better Nigeria and stood by the truth. Obviously, this evil wind which blew this
country during the military regime has continued to get worse even in the present
democratic dispensation and such is not wonderful for our nascent democracy.
The major problem Nigerian leaders are facing is the wrong use of power and
authority. Power which is the use of threat or force to get people do what they
ordinarily would not do does not imply authority because it lacks legitimacy. One can
have power without having the authority while on the other hand, authority connotes
power. Most of our leaders do not have authority but power. This is because the
powers or authorities which they arrogate to themselves do not have the people’s
mandate as well as constitutional backing. In other words, they are illegitimate. These
are power drunken leaders who manoeuvre their ways to government offices and have
failed to understand that the powers and authorities they exercise whether gotten
legitimately or not lie with the people, the sovereign. They are only exercising such
on behalf of the people, the body-politic. In his perspective, Adeyemi observes: “In
Africa, we use power and authority to suppress and dominate people. Being a leader is
assumed to mean that we are superior to those we lead, and our position qualifies us
for worship. We do not understand that leadership is about service.”23 One of the
reasons why democracy is not finding its foot in Africa precisely in Nigeria is because
the government dominates individuals, making them feel powerless. Actually power
resides in the individuals who willingly delegate such to the state for common good.
Being a leader only gives one the opportunity to serve and influence powerful people.
On the other hand, being a dictator over powerless citizens makes a leader worthless.
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Until the average Nigerian is empowered and his or her potentials are unleashed, our
leaders will not be respected on the global scene.24
A leader who is legitimately elected has authority; and if he claims to possess absolute
power, it is because he has not understood his role. Leadership is not a personal
property. It is such that people’s rights are mostly prior to the personal advantages and
whims of the leaders. A leader acts according to the principle of equity.25 At this
juncture, it is important to ask, what are the philosophical basis and the manifestations
of the dominant leadership style in Nigeria? Do they conform to the leadership style
and the world view of a person who can be honourably referred to as being sincere
and trustworthy? It is quite appalling that the answers to both questions are in the
negative sense. In Nigeria today, leadership across the board from local to national
level is all about the well-being of the leaders, their political god-fathers and their
cronies while every other thing is secondary. Their misrule is also manifest in the
spate of onslaught against perceived opponents while in this process, the interests of
the society is undermined or even ignored. Obviously this supposes not to be the case,
as the purpose of leadership is about the well-being of the people. Just as observed
earlier, today, the most lucrative vocation in Nigeria is politics. It is also the easiest
and fastest means of making money. This is the reason why people are ready to do
anything within their powers and even beyond to get into politics and subsequently in
government either by hook or by crook. For them, it is the ends that matter not the
means. These unruly and callous attitudes are often laid bare in our national dailies as
well as weekly magazines for people to read about the large-scale looting from the
nation’s coffer or treasury by our purported leaders.
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According to John T. Tsuwa, since independence the Nigerian political system has
been replete with cases of autocratic, prebendal and clientalist leadership. This
situation has deprived Nigerians from enjoying a serene and fully consolidated
democracy that will be fully participatory irrespective of ideological and party
affiliations. The fact that Nigeria is an enclave economy, a weak state and
heterogeneous society, has created socio-political loopholes. This has allowed
dictatorship and individualistic leadership to permeate all facets of her political life.26
The Nigerian case presents a situation of the powerlessness of the masses,
arbitrariness and suppression foisted by the ruling class over the masses. In view of
this, Nigeria has suffered and is still suffering from a sort of national psychosis, a
condition where legitimacy is eroded and there is a complete split between power and
moral right. It is clear that the consequence of this personalized power structure is in
the final analysis a deep recess into corruption, repression, political intimidation,
marginalization, economic dilapidation and a culture of sycophancy. Today the
culture of sycophancy has eroded the reasoning of most Nigerians and politics of the
belly or the desire to survive in a power-ridden society, has made Nigerians to turn to
praise singers in favour of the ruling oligarchy in a bid to survive.27 There is need for
our leaders to respond to the acute needs of the people such as food security, shelter,
clothing and other basic amenities, otherwise, the people would not be willing and
strong enough to support democracy. Democracy can only make sense when there is a
guarantee of the people’s freedom and economic emancipation. The economic worth
of the modern state as well as the system of distribution is critical to democracy and
when democracy proves incapable of translating the aspiration of the people into
concrete material realities, then the dividends it purports to provide would be a mere
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political jargon that is meant to deceive the citizenry. There is need for quality
leadership from the leaders that challenges and enkindles the fire of self-trust and
creativity among the people.
The fact remains that from military regime to civilian dispensation, the acquisition,
usage and sharing of power in Nigeria has depended on a few powerful elites who use
it to chain the entire people while carrying out their nefarious dictatorial acts. Nigeria
will never rise from its moribund status in the face of this political dysfunction unless
the excesses of political parties and electioneering are curbed. Again, the politics of
the belly and becoming of rich overnight by the power drunken leaders who have
adopted the colonialist strategy of creating structures that are marked by gross
inequalities and fractionalization of the political process most stop. Conclusively, if
Nigeria should realize its long awaiting dream of development in all spheres of
national life, even the so-called ‘vision 20-20-20’ of making Nigeria one of the twenty
economically world power countries and the best in Africa, then the governments
most have a new sense of direction which would be brought by a real ethical reorientation, where the leaders will see themselves as coming to serve and not to be
served.
4.5 Corruption
The issue of corruption is one problem that has been able to overthrow and turn
different governments of different epoch down. Besides being an economic problem,
it is also a socio-political problem, which has captured the interest of many scholars.
In a political sense, it means a deviation from the established standards and norms
expected of individuals within a polity in respect of the common good or welfare of
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the community. Corruption is one of the major reasons why Rousseau advocates for a
civil society. This is to avoid such tendency which is obvious in the state of nature. It
becomes clearer in the illegal and dishonest behaviours which people show,
especially, those in authority for their personal aggrandizement. Corruption is the
abuse or misuse of power or position of trust for personal or group benefit. It is a
dishonest or wicked behaviour that jeopardizes both the individuals’ and countries’
images. For Okafor, “corruption implies the use of power or influence to abuse any
given system be it social, physical, economic, political, moral, religious and
otherwise.”28 It gives rise to other vices that are found in various spheres’ of life. In
fact, it is a symptom of numerous difficulties within contemporary societies. Most
often it involves more than one party; it takes a form of an organized crime. It is the
palm oil that stains the fingers of both the giver and the receiver. According to
Independent Corrupt Practices and other Related Offences Commission (ICPC),
corruption includes vices like bribery, fraud, and other related offences.
However, an analysis of the anti-graft and anti-corruption laws in Nigeria shows that
corruption will continue in spite of the laws because the perpetrators do not fear any
consequences. This is so because our leaders are seen as sacred cows and are being
shielded by the same laws that suppose to convict them whenever they commit
crimes; thanks to the immunity clause.
Transparency International (TI) in 2011
ranked Nigeria 143rd in corruption, making it the 37th most corrupt country in the
world. In 2012 and 2013, it is rated the 35th and the 8th most corrupt country in the
world respectively. It is now dawning on our people that the so-called private
enterprise and legislators are free from scrutiny while governors and president claim
to be immune. Corruption is found in the award of contracts, where the money
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allotted for a contract is inflated three times than actual job and worse still the job will
often be abandoned halfway or be done haphazardly. There is corruption in promotion
of staffs, misuse of public offices, dispensation of justice, embezzlement of public
funds and so on. Nigerian system has been so corrupt that everything from this
country is seen as corrupt and fake. It has eaten deep into our bone marrow and has
even been seen as our second nature. Nigerians no longer enter other countries of the
world or carry out one business transaction or the other across the world without
being examined and re-examined from time to time no matter the calibre of the
persons, all because of corruption. There is no honest effort to quell this cankerworm
that has dragged us to the mud before other nations of the world. One thing that is
quite amazing is that every media house in Nigeria, association, religion,
organization, institution to mention but a few, has been fighting this vice. The irony is
that, the more it is being fought the more ground and glory it gains. The question is,
can corruption fight corruption and the answer is no. Nigerians fight corruption by
words of mouth, they do not fight it in the real practical sense of the word. Opara
commenting on Emeka Njoku’s paper presentation on Corruption, Injustice,
Rebranding and Shamelessness notes:
Everything about Nigeria is corrupted and unfair including the air, water,
electricity,
fuel,
census,
mindset,
politics,
elections,
governance/leadership, ‘rebranding’, religion, Niger Delta ‘Amnesty’,
jumbo salaries, benefits and multi-car convoys/security for politicians.
Even the fight against corruption is corrupted. Agencies fighting
corruption are handicapped by the lawmakers and executive branch of
government.29
For him, Nigeria is a child of corruption and injustice; it is a land of crooks and
criminals, looters and plunderers, oppressors and self-centred megalomaniacs.30 Our
country is so corrupt that it has continued to make the headlines as one of the most
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corrupt countries in the world. It is so pervasive in the society, that one is confused on
what could be done, if not to copy the Chinese and start killing people especially
public office holders whose names have been made synonymous with corruption. The
problem is that the three arms of government and especially the civil service at all
three levels of government are corrupt. The increase in the level of corruption in
Nigeria can be traced to people holding power at the federal, state and local
government levels. Besides, people in both private and public position, even
traditional rulers and Church leaders are also corrupt. “Corruption, fraud and
smuggling are not only being institutionalized but are fast becoming a business in
Nigeria.”31 In other words, the fight against corruption in Nigeria will always remain
a herculean task. This is because it has been institutionalized. According to Achebe,
although Nigeria is without any shadow of doubt one of the most corrupt nations in
the world, there has not been one high public officer in the twenty-three years (and
now fifty-six years) of our independence who has been made to face the music for
official corruption. Suffice it to note that from fairly timid manifestations in the
1960s, corruption has grown bold and ravenous, with each succeeding regime,
becoming more reckless and blatant.32
It is important to mention that Nigerians are corrupt owing to the fact that the system
under which they live today makes corruption easy and profitable. They will cease to
be corrupt when corruption is made difficult and inconvenient.33 It was during
President Obasanjo’s regime that the most critical tackle was unleashed on corruption
in Nigeria in recent times. This was made possible thanks to the bill he presented to
the national assembly on “the prohibition and punishment of bribery, corruption and
other related offences.” However, the passing of this bill in year 2000 could not pass
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the litmus test as it is carefully and politically castrated and thus deprived of a legal
tooth.34 It is very unfortunate that those leaders/officials who cry against corruption
will be the ones to be caught in the web in the long term. Hence, Odey commenting
on what transpired in 2003 elections writes:
Does it not bother the president that he, of all persons who claims to be
the grand master of the war against corruption, has allowed himself to
be involved in such degree of electoral corruption. If I may ask, what
is corruption? If the president does not know, let him be told that what
took place on April 12 and 19, 2003 is corruption at its superlative
degree.35
There is no doubt that Obasanjo’s democratic regime is one of the worst regimes we
have experienced in the country since independence; yet he is the proprietor of anticorruption in the year 2000. Apart from the atrocities that have taken place in Nigeria
since the transition from military junta to civilian in 1999 the perfidies that took place
in 2003, 2007 and 2011s’ elections spoke volumes of our leaders and corruption.
There were massive rigging, hijacking and stuffing of ballot boxes, killings, frauds
and constant changing of figures. Politicians often siphon public funds to further their
political careers and they also pay gangs to aid them in rigging elections. The
elections since the end of military rule in Nigeria have been marred with so many
irregularities and bloody affairs.
One of the issues that boggles our mind in this essay is whether political offices in
Nigeria can be justifiably occupied based on merit without manipulation of any kind.
This has been the case of this country during the military regimes and has continued
in the present democratic dispensation. We were all aware of what happened in 1993
when Chief Moshood Kashimawo Olawale Abiola (M. K. O. Abiola) was denied
victory of what supposed to be the fairest election in Nigeria thanks to the dubious
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annulment of the election by the then military head of state, Ibrahim Babangida. This
was followed by his imprisonment and subsequent elimination and yet nobody was
brought to book for this nefarious act. This is wickedness, barbaric and corruption in
its devastating degree, where one is denied of one’s merited post and even killed in a
broad daylight in favour of another who never merited it. Though this happened
during military regime, but the ones taking place in present democratic dispensation
call for worry. This gives a perfect insight for the answer to the question on whether
one can justifiably occupy a political office in this country without manipulation. It
also casts serious doubt to its possibility. When Nigeria finally transited from military
to civilian system of government in the name of “democracy” we all heaved sigh of
relieve and breathed freely again. We thought that corruption has ended; little did we
know that it is a kind of power changeover from one corrupt regime to the next, what
a tragedy to a democratic ‘undemocratic’ nation like ours!
In politics, corruption undermines democracy and good governance by flouting or
even subverting formal process. Corruption in elections and in the legislature reduces
accountability and distorts representation in policymaking. It comprises the rule of
law in the judiciary and results to inefficient provision of services in public
administration. Corruption erodes the institutional capacity of government as
procedures are disregarded, resources are siphoned off and public offices are sold and
bought without any qualms of conscience. It undermines the legitimacy of
government and mares the true process of democracy. In fact, it violates the basic
principles of a political society and throws the society into anarchy and doom. During
the Nigeria-Biafra war (1967-1970), many people suffered and died due to Nigeria
blockade and starvation of Biafrans. In Nigeria today, more people are still suffering
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and dying due to corruption menace, injustice and bad governance. The issue is that
corruption by public office holders and Chief Executive Officers (CEOs) is a wicked
war by the powerful/political class and their cronies inflicting death, pain and
suffering on the citizenry. Those corrupt public and party office holders/privates
sector CEOs, who are looting and plundering the people’s resources are bloody
murderers, economic/political robbers and saboteurs. They are far worse than the
kidnappers, armed robbers, assassins and cultists combined.36
There are a lot of reasons that could lead to corruption, moral breakdown in society,
bad leadership, many years of military rule, artificially created country without sense
of patriotism, excessive quest for power or wealth to mention but a few. The issue of
the overarching crude oil economy and politics has also been figured out as the crux
of the present Nigerian corruption problem. It is obvious that “lifting crude oil” is a
major form of political patronage in Nigeria since 1970s oil boom. Indeed, since the
advent of the oil boom in the 1970s Nigerians have developed an unhealthy love for
easy wealth and luxury goods while at the same time losing their traditional interest
for hard work. At the moment the national preoccupation is the sharing of the socalled “national cake.” Though corruption has eaten deep into Nigerian system that
the latter is branded after the former and the former seen as the bane of the country
and has largely defied the past and present efforts to stymie it, there would still be
light at the end of the tunnel if we want. The establishment of Independent Corrupt
Practices and other Related Offences Commission (ICPC), Economic and Financial
Crimes Commission (EFCC), and Code of Conduct Bureau together with their
tribunals is a laudable kick-off on the war against corruption. Granted some successes
have been registered by these bodies, the general impression is that they are used by
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those at the hem of affairs as instruments of vendetta against their political opponents.
Nevertheless, even when these agencies want to be just in carrying out their functions
as regards the fighting of corruption; they are afterwards frustrated through
withdrawal of fund or support, resources and enabling laws or environment by the
powers that be, who are poised to covering their atrocities as long as they are in
power.
We are not yet convinced of what we want and personally I am confused. I still do not
understand the kind of leaders or officials we have in this country and their intentions
about this country and her citizens. In the words of Opara, If Nigeria is really serious
about fighting corruption, why has the lawmakers not passed the freedom of
information as well as the whistle blowers protection laws? Why are the lawmakers
seeking to be included in the immunity clause for executive thieves and looters? The
Italian courts recently stripped the constitutional immunity clause for prime minster in
the larger public interest of fighting corruption and criminality in Italy. Why can’t the
Nigeria Supreme Court do the same for Nigeria? Why are the loot and other criminal
actions of the dead General Abacha and family the only ones being recovered and
punished? Is Abacha the only former head of state that looted the country and abused
office? Fairness demands that all former heads of state get the Abacha treatment.37
If corruption is to be given a short shrift in Nigeria, then the social, business and
bureaucratic environments must be corruption hostile rather than friendly. In other
words, there should be a well-funded comprehensive public education and
enlightenment programme on the nature of corruption and its negative effects in the
Nigerian polity. This job should be taken by the National Orientation Agency (NOA),
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Federal and State Ministries of Information, Religious Organizations and above all,
the different boards in education sector so that the future generation of this country
will be rescued from drinking from the same well of corruption. Again, EFCC, ICPC,
Code of Conduct Bureau and other corruption/crime fighting agencies should be
independent and actually empowered by the constitution to arrest and charge both
former and current heads of states, governors, local government chairmen, ministers,
lawmakers,
political
appointees,
political
party
kingpins
and
election
manipulators/riggers. There should be high powered special court or tribunal with
special powers to promptly try and sentence corrupt executives, lawmakers and
individuals within six months. Any corrupt high public/party office holders found
wanting of economic sabotage and crime against humanity should not escape death
penalty.38 It is when the culprits have been made to suffer severely that those thinking
to join the race in the name of politics for their selfish interest and those who see such
as money making business will learn to conduct themselves properly and have a
rethink where best to ply their trades.
Nigerian leaders should learn to price the common interest of the nation above their
private ones if they really want to fight corruption. They should look unto the great
leaders in history like Martin Luther King Junior, Mahatma Gandhi, Nelson Mandela
and others who thought of their countries, their people first before themselves.
Nigerian governments should also learn to integrate anti-corruption actions into all
aspects of their decision-making. They must make public spending and contracting
more transparent and should be accountable to the people. It is when these are done
that we could say that we have a working or sound democracy, otherwise, it could be
better called a “demo-corruption.”
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4.6 Human Rights and Social Justice
There have been many unresolved issues in Nigeria, but the problem of human right
and social justice is quite a troubling one. It was one of the major problems perceived
by Rousseau in the state of nature which made him subscribed to a civil state. In fact,
the issue of right and social justice is central in his political philosophy. The “property
right, civil right and freedom” are famous in his theory. For him, “what constitutes the
greatest of all, which should be the goal of every system of law...can be reduced to
these two main elements: freedom and equality.”39 Both are important because the
freedom of individual is an essential source of the state’s strength and freedom
actually depends on equality. It is unfortunate that this vision of Rousseau does not
hold water in Nigeria’s socio-political society due to “human rights abuse and social
injustice.” Nigeria however has a different view and orientation which even militates
against the rights of the citizens. The fundamental human rights of Nigerians which
should be natural, inviolable and universal have been swept under the carpet and
trampled upon.
In a liberal-democratic society, the idea of right is central to moral and political
thought. Certain liberties are held to be so essential that everyone is thought to have
right to them, example, the freedoms of religion, opinion, association, movement,
expression to mention but a few. These rights are taken to belong equally to all
citizens or to all human beings. This is because, it is what is due to the citizens. Right
is that which one has a strong justifiable legal/moral claim on. It is an entitlement or if
you like a valid claim to something. Thus, if one has a right to do or have something,
others have a duty not to interfere in one doing or having it. If this is true, then, why is
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the African case different? An innocent person is always convicted since he has no
money and nobody to speak for him. It is only in Africa that a poor man hardly wins a
case or gets fair treatment in the law court, unless he has Abraham as father. For
instance, Mr. John Yakubu Yusuf (former director of the police pension board) who
was arraigned by the EFCC on March 29, 2012 and convicted for stealing over
N23.3bilion from the police pension fund was once sentenced for only two years
imprisonment with an option of N750, 000 fine by Justice Mohammed Talban of the
FCT High Court. In the same week Mr. Adepoju was sentenced for three years
imprisonment without any paying option for stealing a cell phone worth of N17, 000
in Ondo State. This is a clear case of injustice and wickedness on ordinary Nigerian. It
is discriminating and not acceptable in any true democratic society. If the same rule of
law is to be applied to the former offender, he supposed to serve for 352, 941 years
jail term. For Kevin C. Arua, “Immunity or no immunity, all the prisons in Nigeria are
bursting with the poor lighter offenders, and very often even with the innocents, while
the hardened criminals are moving about freely, some with special protection
provided by the state.”40 Again, it is in Africa that election winners are declared to
have failed because they are not members of the ruling parties or members of a
particular caucus. Which one are we to say, instances are abounds of gross denial of
people’s rights in this part of the world. In Nigeria, for example, the cases of killing
are on the increase. If it is not the dreaded Islamic extremist group, “Boko Haram,” it
is the Niger Delta Militancy, and worse still, different political groups. These are
fruits of a decaying nation, a country where people trade on injustice, bribery and
corruption, a nation where the sense of reasoning has been thrown overboard and the
unnatural turned to be natural all in the names of leadership, power, authority, wealth
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and fame. In view of this violation and abuse of human rights in Nigeria, Oraegbunam
observes: “Nigeria however paints, in the main, a different picture. Fundamental
human rights of its citizens have been trampled upon. Incidents of police brutality
abound and the doctrine of Habeas Corpus Act thrown to the dogs.”41
Human rights which are basic rights and freedoms that all human beings are entitled
to, like the right to life and liberty, freedom of expression, and equality before the law
among others are expressly summed up by Article 1 of the UN’s Universal
Declaration of Human Rights (UDHR). All human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and should act
towards one another in the spirit of brotherhood. The truth is that this fundamental
fact which is universally accepted has been relegated to the background and treated
with contempt in Nigeria by our leaders all to the detriment of the poor masses, the
hoi polloi in the society. Human right in Nigeria is still at the vegetative level and
government officials at all levels have continued to commit serious abuses in this
regard. This is against the spirit of government perceived by Rousseau which is to
ensure this mutual correspondence between subjects and sovereign. For him,
government is entrusted with the execution of laws and maintenance of liberty, both
social and political.42 Although human right in Nigeria is said to be protected under
the most current constitution of 1999, yet, there are lots of abuses. There are still more
to be done in the area of protection of citizens’ life and property from Boko Haram
insurgents, abuses committed by governmental forces with immunity, sporadic
abridgement of citizens’ right to change their government, due to some election fraud
and other irregularities. Again, there are politically motivated and extrajudicial
killings by security forces, security force torture, rape, inhuman treatment of prisoners
90
and criminal suspects, arbitrary arrest and detention, prolonged pretrial detention,
denial of fair public trial, executive influence on the judiciary and judiciary
corruption, infringements on citizens’ privacy rights, restrictions on people’s freedom,
discrimination against women, child abuse, sexual exploitation, discrimination against
people with disabilities and lacks of social equality among others. These are effects of
social injustice which are currently gaining more glories in the country and could lead
to a serious anarchy and doom which posterity will not find it easy to forget if nothing
positive is done urgently. Being a democratic state, I think is a sheer wickedness and
injustice for the citizens of this country to be meted out with such treatments. In fact,
it is degrading, inhuman and undemocratic. Human rights are pillars of any true
democratic setting, because the essence of democracy itself is based on the concept of
human rights. Human rights are universal in nature and applicable to all humans
irrespective of the society and culture. However, most often it is not always the case
in Nigeria, as these rights have been abused, violated and even ignored, hence, the
need for human rights organizations and defenders.
On the other hand, human society comprises self-sufficient associations regulated by a
common conception of justice and aimed at advancing the good of its members. These
associations as co-operatives of mutual advantage are characterized by conflicts and
identity of interests. Social co-operation makes possible a better life for all than it
would have been if everyone were to try to live by his own efforts, hence, the constant
negotiation of identity of interests. However, men are not passive concerning how the
greater benefits produced by their joint labour are distributed. Each prefers a larger to
a lesser share in order to further his or her own aim. The set of principles for choosing
between the social arrangements which determine this division and for reaching a
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consensus as to the proper distributive shares is called social justice. Besides, justice
is seen as an expression of the rights of individuals in contrast to the claims of general
social order. In the law, it is used to cover the whole field of principles and procedures
that ought to be followed. Thus the system of the law as a whole is often called the
system of justice. Of course, “the idea of justice, both in legal and in moral thought, is
plainly concerned with the general ordering of society. A breach of that order is called
a breach of justice, and penalties for the breach of justice are invoked in the name of
justice.”43
Social justice is the application of justice on a social level.
The most direct
conception of social justice would be to maximize the overall good for the majority of
the members of the society. Consequently, Pope Pius XI has this to say as quoted by
S. Okechukwu:
It is the function of social justice to require of each individual that
which is necessary for the common good. Consider a living organism:
the good of the whole is not properly secured unless arrangements are
made for every single member to receive all that it needs to fulfil its
own function. Exactly the same is true of the constitution and
government of a community; the common good of a society cannot be
provided for unless each individual member, a human being endowed
with the dignity of personality, receives all that he needs to discharge
his social function.44
In Africa today, particularly Nigeria what thrives is social injustice. People are
massively denied of their (natural and constitutional) rights at all level and yet we
practice democracy and preach the gospel of justice, equity and fairness. This is
against the spirit of civil state as captured by Rousseau. It is appalling that the
fundamental rights enumerated in Chapter IV of the 1999 Constitution of the Federal
Republic of Nigeria, do not contain provision that would ensure social justice.
92
Democracy can only thrive where social justice is guaranteed in the constitution of a
state. The rule of law strengthens democracy and social justice and will be built on
ordinary sands, if the essential and crucial rights of citizens are not protected.
Democracy indeed, should not be confined to voting at elections, belonging to, or
forming of political organizations. It must manifest ability of every citizen to social
justice that would prepare the citizen to participate in his nation’s governance. Social
justice is the life-wire of societal harmony because equity, fairness and peaceful living
will remain the strong foundation of such a society. The absence of social justice
gives rise to social unrest, social contradictions, fear, despair, anxiety, social maladjusted citizenry that often time engage in an orgy of vandalism and mindless
violence. “The primary reason for which men, united in a political society, need the
state, is the order of justice …, social justice is the crucial need of modern
societies.”45 There should be no denial of people’s rights, whether political, social,
economic, educational, structural and otherwise. This is the spirit of law and civil
state; it is the basis of democracy and social justice. Still on the issue of social justice,
the Director General, National Orientation Agency (NOA), Mr. Mike Omeri observes
that the “social entitlements of citizens” are being cornered by a few individuals,
thereby impoverishing the citizenry. Despite our enormous resources, we are yet to
make significant progress in the area of the social entitlement of citizens. For him:
The resources of the state are still in the hands of a few people while
the vast majority of the populace live in adverse poverty and lack
access to justice. This obvious wide gap between the rich and the poor,
with its attendant frustration and mistrust, often leads to social strife
and upheavals thereby heightening conflicts and insecurity.46
The truth of the matter is that the level of social injustice in the country is quite
alarming. These social injustices are becoming so conspicuous to the common man in
93
the street and have led to the loss of faith and trust by a good number of Nigerians on
the country’s governments. While our leaders, office holders and political appointees
are busy enriching their pockets and gathering wealth for their generations yet unborn,
the average Nigerians are dying in penury, lack of care and injustice. “Public/party
officials fly overseas even for simple medical checkups while the poor masses cannot
afford local animal level medical care is corruption and injustice.”47 Furthermore, Pat
Utomi decrying the high level of social injustice in Nigeria says, while it is common
knowledge that most of us live on less than a dollar a day, we are made to understand
that 523 billion naira has been expended on our National Assembly since 1999 while
ASUU is always on strike over poor payment of salaries. Again, when you juxtapose
the fact that our universities graduate over 250,000 people every year and that since
1999, our public universities have not seen the type of money that has been
committed to our legislature, you see the level of misplacement of priorities in the
country. How do university lecturers meant to feel when they provide such a vital
service and are so poorly remunerated while our legislators individually walk away
with tens of millions each year even where their productivity is so low?48 The truth is
that few privileged people siphon the country’s wealth without being questioned
under the umbrella of cover me I cover you policy.
Certainly the increased wealth brought about by the economic growth
in Nigeria is concentrated in relatively few hands. What do we expect
to be the lot of the ordinary citizens of Nigeria when each of the 109
members of the senate drags home every month more than N2, 484,
245.05 as basic salary rate with other allowances.49
The leaders of this country should do well to heed to the voice of reason and to the
advice of well meaning Nigerians and begin to pay greater attention to the welfare of
the average Nigerian and take actions that create a level playing ground and provide
94
for social justice in Nigeria. Hence, we should look at our scale of preference to know
how best to spend our resources. Things that matter most should not be at the mercy
of those with less importance.
Taking cognizance of the commentaries passed by individual, national and
international organizations, “social injustice” has been declared the major cause of
high rate of crime and violence in Nigeria among others. This is seen at various facets
of the nation; ranging from the nation’s economy and resource management, to her
political and leadership profile, education and human development. The sense of
justice and equity has long been buried. Actually, lacks of justice and economic
inequalities have tremendously increased the level of crime and violence in the
country. In societies where there is peace, the concept of social justice and economic
equality is enforced to possible level. Such societies are always led by governments
who see the problems of the citizens as their personal problems and try solving them.
S. Okechukwu commenting on Pope Pius XII’s views notes, “…social justice ought to
regulate suitably the sharing and the using of wealth, so that it is not concentrated
excessively in one place while it is lacking entirely in another. Wealth is like the
blood in the human body, it ought to circulate around all the members of the social
body.”50 Indeed, if Nigeria is fairly ruled and the rule of law carefully followed and
implemented to the fullest, there will be economic reforms, equality education, youth
empowerments/employments, accountability and genuine transparency. This in
essence will reduce the issue of crime and violence in the country to the barest
minimum.
95
Above all, the matter of human rights and social justice which formed part of our
discussion in this chapter has been at the basis of the state formation. It also creates a
fertile ground for democracy that is operative and participatory. It is concerned with
the dealings of men with one another; it involves the relations of leaders with the led,
insofar as they are related to the society as a whole with common interest, that is, the
common good. Therefore, the “socio-political and economic dictatorship and
highhandedness”
which
seem
to
have
taken
the
scene
of
Nigerian
democracy/governments and has dealt serious blow on human rights and social justice
in Nigeria is not meant for this task. Hence there is need for a change of heart and
mindset by Nigerians especially, the leaders and imbue the spirit of right judgment
and justice which is truly sound and operative
96
End Notes
1
Oraegbunam K. E. Ikenga, West African Journal of Philosophical Studies. Vol. 7, Eds.
Ogunmodede F., Oguejiofor. J.O and Abua-Quansah. F. (Enugu: An AECAWA Publication,
2004), 108.
2
Separation of power is seen as the division of governmental political powers that exist in any
given state into the three organs of government. This theory was developed and popularized
by the French political thinker and Jurist Baron De Montesquieu in his book, The Spirit of
Laws. The stand of this principle is that all the amount of governmental political powers that
exist in a given state should not be rested on one person or one organ of government. Instead,
it should be divided among the three arms of government (the legislature, executive and
judiciary) for effective government and checks against dictatorship or tyranny.
3
Francis O. C. Njoku, Philosophy in Politics, Law and Democracy (Owerri: Claretian
Institute of Philosophy Nekede Owerri, 2002), 6.
4
John J. Odey, The Rape of Democraacy (Enugu: Snaap Press Limited, 2001), 118.
5
John J. Odey, After the Madness Called Election 2003 (Enugu: Snaap Press limited, 2003),
43.
6
Njoku, Philosophy in Politics, Law and Democracy, 40.
7
Karl H. Peschke, Christian Ethics Vol. 2 (Bangalore: Theological Publications in India,
2001), 519.
8
Maritain Jacques, Man and the State (Illinois USA: The University of Chicago Press
Chicago, 1951), 10.
9
Jean-Jacques Rousseau, The Social Contract, trans. Christopher Betts (New York: Oxford
University Press, 1994), 101.
10
Jean-Jacques Rousseau, The Social Contract, 135.
11
Njoku, Philosophy in Politics, Law and Democracy, 41.
97
12
“Gaudium et Spes” in Vatican Council II: The Conciliar and Post Conciliar Documents,
no. 75, 983-984.
13
P. K. Okoye, Nigerian government and Politics (Owerri: Educational Publishers Limited,
1997), 11.
14
Ikenga K. E. Oraegbunam, “John Locke’s Political Liberalism: Its Relevance to Nigerian
Democracy” in West African Journal of Philosophical Studies Vol.7 (Enugu: An AECAWA
Publication, 2004), 109.
15
www.gamji.com/articles6000/NEWS6435.htm
16
Jean-Jacques Rousseau, The Social Contract, 88.
17
Oraegbunam, ”John Locke’s Political Liberalism”, 110.
18
Jean-Jacques Rousseau, The Social Contract, 126.
19
Njoku, Philosophy in Politics, Law and Democracy, 219
20
Chinua Achebe, The Trouble with Nigeria (Enugu: Fourth Dimension Publishing Co.
Limited, 1983), 1.
21
Oraegbunam, “John Locke’s Political Liberalism”, 110-111.
22
Patrick G. Finegan, Joseph Starlin’s Winning Management Strategies for the Twenty-first
Century (Washington DC: The Palindrome Press, 1991). 213.
23
Sam Adeyemi, Nigeria of My Dream (Lagos: Pneuma Publishing Limited, 2010), 56.
24
Adeyemi, Nigeria of My Dream, 57.
25
Njoku, Philosophy in Politics, Law and Democracy, 220.
98
26
John T. Tsuwa, “Personal Rule, sycophancy and the Crisis of democratic Governance” in
Nigeria in Perspectives on Leadership in Africa, eds. Egodi U., Pat U. O., and Edlyne A.
(Nsukka: Afro-Orbis Publishing Co. Limited, 2010), 312.
27
John T. Tsuwa, “Personal Rule, sycophancy and the Crisis of democratic Governance in
Nigeria” in Perspectives on Leadership in Africa, 312.
28
E. K. Okafor, The Nigeria of My Dream (Owerri: Canum Publisher Limited, 1999), 12.
29
Lawrence U. Opara, When the Bread We Eat Is as a Result of Exploitation (Owerri: EduEdy Publications, 2011), 83.
30
Opara, When the Bread We Eat Is as a Result of Exploitation, 83.
31
John O. Odey, The Anti- Corruption Crusade (Enugu: Snaap Press Limited, 2001), 39.
32
Achebe, The Trouble with Nigeria, 54-55.
33
Achebe, The Trouble with Nigeria, 48.
34
Oraegbunam, “John Locke’s Political Liberalism”, 11.
35
John O. Odey, This Madness Called Election 2003 (Enugu: Snaap Press Limited, 2003),
47-48.
36
Opara, When the Bread We Eat Is as a Result of Exploitation, 85-86.
37
Opara, When the Bread We Eat Is as a Result of Exploitation,86-87.
38
Opara, When the Bread We Eat Is as a Result of Exploitation, 86.
39
Jean-Jacques Rousseau, “The Social Contract or Principles of Political Rights” in The
Essentials of Rousseau trans. Lowell Bair (New York, 1974), 45.
99
40
Kevin C. Arua, “Ten Years of the Hypocrisy of Democracy in Nigeria (1999-2009)” in
The Humanities and Nigeria’s Democratic Experience (Anambra: Rex Charles and Patrick
Limited, 2009), 82.
41
Oraegbunam, “John Locke’s Political Liberalism”, 112.
42
Jean-Jacques Rousseau, The Social Contract,92.
43
Raphael D. D., Problems of Political Philosophy, (Houndmills, Macmillan Education
Limited, 1970), 116.
44
Sylvanus Okechukwu, “Social Justice in Nigeria: The Task Before the Church” in Ad
Dandam Scientiam Salutis, eds. B. Ukwuegbu, A. Osuji and I. Igwegbe (Orlu: Chimavin
Productions Limit”ed, 2010), 319-320.
45
Maritain, Man and the State, 20.
46
http://www.pmnewsnigeria.com/2013/03/08/nigerias-lack-access-to-social-justice-noa-dg/
47
Opara, When the Bread We Eat Is as a Result of Exploitation, 83-84.
48
http://www.patitospost.com/?p=281
49
Ben E. Maurice, “Between Starvation and Constipation: The Fate of the Common People;
the Nigerian Experience” in Threats to Human Existence: The Way Out, Wisdom Satellite,
ed. Julian Nwachukwu (Owerri: Chimavin Productions Limited, 2010/2011), 16.
50
Okechukwu, “Social Justice in Nigeria: The Task Before the Church” in Ad Dandam
Scientiam Salutis, 321.
100
CHAPTER FIVE
EVALUATION AND CONCLUSION
5.1 Evaluation
The ideas of law and civil state are very fundamental in Rousseau’s political
philosophy. Before the emergence of political society, man has been living in the state
of nature. For Rousseau, this is one of the major stages in man’s political development
by which the social contract could be explained. Man is naturally free that he always
exercises his freedom when he gets the opportunity. This gives him his first law, that
is, to preserve his own self. To achieve this, he has to device any means possible and
this can lead to survival of the fittest, since naturally people do not have the same
strength. According to Rousseau, in the state of nature one gets tired in defending
one’s property. This is because some are stronger, some bigger and some more
aggressive. There is need therefore, to form an association in the form of society to
protect everyone’s rights. This association must be based on contract, an agreement
which is concretized and consolidated with law.
For people to speak with one voice on any issue means that they have reached an
agreement among themselves concerning the matter. In this case, their action is
already civil. This is the true foundation of civil society. It is this basic and
constitutive agreement that gives rise to the transition from the state of nature to the
civil state. So the civil society is made possible by the social contract and that is based
on law. This movement allows man substitute justice for instincts in his conduct. It
also allows duty and right their place by following some morality and through proper
reasoning.
Hence, Rousseau submits that laws properly speaking are only the
conditions of civil association. Consequently, Cicero questions: “What is a state if not
101
the association of citizens under law?”1 While state is the union of individuals in the
society, law is its bond. Law keeps the society in motion. It is an indispensable tool in
the formation of civil society.
The purpose of government in Rousseau’s political theory is for the protection of the
people, their property and the promotion of the temporal welfare of the people in the
state. This of course concerns the provision of basic infrastructures and amenities.
However, in a civil society like Nigeria, political environment, public property and
utilities are treated with carelessness and mass neglect. The truth of the matter is that
we have failed, even in principle to uphold the very tenets upon which the concept of
democracy is predicated. Democracy is built on the equality of the people, their
freedom to associate with one another for the realization of their ideals, defence and
promotion of their interests (the common good). Democracy in Nigeria has fallen short
of what it stands for in the real sense of the word. It is no longer the power to the
people but to the elites as the ordinary citizens are in the long term oppressed and
trampled upon having submitted their rights in pursuit of common good. This calls for
concern on how weak our constitution is and shows that we are still at the vegetative
level when it comes to democratic system of government.
On the other hand as regards Rousseau’s position on the topic under discussion, there
are some sort of logical inconsistencies in his position. At one point, he concludes that
the state of nature is a state of freedom and equality where man enjoys idyllic
happiness and at another point he advocates for civil state. The question is: Of what
need then is the civil state if men were free, equal and enjoy idyllic happiness in the
state of nature? There should be no need for such in the first place. Again, what
102
guarantees the safety of lives and property in the civil state? This is because in the socalled “civil state” human experience still shows that not all conform to what is or to
the state of affairs, despite its democratic apparatus and political means of enforcing
order and maintaining peace. In other words, his pretentious explanation of the
transition from the state of nature to the civil state does not escape the very problem
which he intends solving. This is seen in various countries across the world including
France. Suffice to observe that not even the western world is completely democratic.
For Rousseau, true democracy has never existed and never will.2 Among other things,
not everybody is comfortable in a civil society; some people succeed more in an
uncivilized or lawless society, as such they prefer it to the civil society.
Having said this, one cannot rule out the fact that Rousseau’s ideas of law and civil
state could be of great help to Nigeria’s democracy. Like Locke, he has left for
mankind an everlasting legacy for the better running of government in spite of the
inadequacies that are encountered during the formulation of the theory. He sees the
state as existing for the good of mankind and not the other way round. With law and
civil state, Rousseau has been able to address the challenges that individuals
experienced in the state of nature to a reasonable extent. People can now consent to
the general will for a more harmonious living in the society. There is no gain saying
that Rousseau’s theory of law and civil state ensured order and stability in France
during his time; that is to say, it was able to handle the situation of his time. Indeed, it
succeeded in freeing the citizens from the shackles of monarchism and the crippling
hand of absolutism. In the same vein, it can help to strengthen our democracy even
though it has its own fault, since there is no perfect society or system of government.
It can also monitor the application of constitutional provisions, increase the
103
participation of various segments of the society while instilling some sense of
tolerance, hard work, compromise and moderation among the various competing
parties in the state. It can help in mitigating the excesses of fundamentalist extremists
who tend to have a very narrow view of life in the society. Equally, it can serve as
recruiting ground for prospective members of the political or economic classes to
enhance the quality of participation in government.
This theory brings out the idea that civil state rests not on the consent of the ruler but
of the ruled and thus becomes an important factor in the development of modern
democracy. The issue of enhancing man’s freedom as well as protection of his
property via the constitution in Rousseau deserves praise, because without it, people’s
rights would have been trampled upon. For instance, in Nigeria today where we
practice democracy and have the rights of the citizens encoded in the constitution,
people are still denied of such, come to think of it what will happen if there is nothing
like constitution. Hence, Cicero writes: “Even if equality of property is not appealing
and if the mental abilities of all cannot be equal, certainly the rights of all who are
citizens of the same commonwealth ought to be equal.”3 The fact remains that this
theory has brought to the consciousness of man the fact that individuals have rights
that are natural and inalienable to them, as such, they need to seek for them as well as
to defend them. For Rousseau, government is for the people, made through the will of
the people, that is, the ‘general will.’ It must therefore, seek to the well-being of the
people. Above all, Rousseau’s theory can serve as a liberating conceptual tool for
strengthening democracy and politics in Nigeria as it did in France in the past if
properly applied to our country’s system of government. To achieve this we have to
know that democracy is government of the people - the sovereign. Hence, general will
104
of the people remains paramount for it to be upheld. Thus, a democratic leader should
understand that leadership involves people – the leader and the led and that the two
work hand in hand. There can be no leaders without followers (the led) and there can
be no followers without leaders. Quoting Dan Agbese, Egodi U. puts it this way:
A leader is a leader because he leads; he leads because he has followers.
He has followers because a group of people surrender part of their
independence to him in return for his performing certain defined
functions on its behalf and in the common interest.4
Though democracy in Nigeria today is young and epileptically toddling, yet there is
still light at the end of the tunnel. Thus the democratic institutions in the current phase
of democratization are gradually being reawakened on the question of accountability,
constitutionalism and the rule of law. Hence, a proper application of these principles
of Rousseau would help to strengthen Nigerian democracy. Therefore, all hopes are
not lost, as democracy is like a life process of socialization. What is required is for the
public office holders to develop the political mindset of changing their nefarious and
obnoxious political culture of absolutism in struggling for acquisition and retention of
power/ accumulation of wealth. It is said that power corrupts, and absolute power
corrupts absolutely. Hence, a democratic state is supposed to be truly democratic,
governing by the rule of law and guided by the principles of accountability, freedom
and equality.
To ensure that Rousseau’s social pact does not remain an empty formula in achieving
the goal of people’s existence, everyone who refuses to obey the general will is
compelled to do so by the whole body. This is because law is the product of “general
will” and general will for Rousseau is the will of the “sovereign.” In the same manner,
the principle of rule of law should be respected by every Nigerian since democracy
105
can only thrive on such ground. Thus, being equal under the social contract, all
citizens may prescribe what all should do, whereas none has the right to require
another to perform anything that he does not perform himself.5 With regard to
leadership on the other hand, one should be knowledgeable enough to be able to
understand the interest-demands of the civil state. Proper understanding of what a
thing is paves way for its appreciation. People must be reasonable enough to vie for
posts or positions they are qualified and can best handle. They should have as their
motto: “to serve and not to be served” just like John Paul II who saw himself as
“servant of the servants of God” while in office as the Roman Pontiff.
The problem with Nigerian democracy is that our leaders see leadership as the
opportunity to loot from the public coffers or treasuries, a time to hijack power, a time
to be served and not to serve. This is the reason why our governments treat the
country’s affairs as their private business. They see it as an opportunity of dumping
and fencing off the ordinary citizens they wined and dined with while seeking for
election into public offices. Again, notwithstanding the boring condition of staying in
power for long or the setting in of the economic law of ‘diminishing return,’ it is also
morally wrong for an individual to hold firm to political power for a long period in a
society where millions of people with untapped leadership talent are residing as
legitimate citizens. A good leader therefore, demonstrates credibility at all times and
selflessness is always his watchword.
He must have initiative and vision; he must be outward looking and
enlightened; he must be an objective person. He should have the capacity
to manage information (as he sometimes gets misinformed through
unsolicited sources); he must believe in equity and fair play; he must be a
[person] of integrity; he must be tolerant, patient and understanding; he
106
must be self-disciplined… His watchword is service; he does not take but
gives…6
Leaders should operate by the principle of the rule of law where equality before the
law court and due process are the watchwords. Once this is obtainable in a society or
state, the fundamental rights of the citizens will be protected and certainly, there is
bound to be peaceful political atmosphere followed by stability and progress.
On the other side of the coin, the citizens should be conscious of their duties in
contributing their own quotas to the nation building. Inasmuch as they demand for
their rights, they should at the same time carry out their duties as citizens
conscientiously and faithfully. Just as individuals are parts of the whole, all hands
should be on deck for a peaceful co-existent and progressive society. There should be
strict separation of power for proper checks and balances. Also there is need for
revolution if the situation calls for it, because most often, such comes with wonderful
innovation and prospects. There should be proper orientation of the leaders and the led
on transformational leadership and on the challenges of the modern civil state as these
will go a long way in salvaging our country’s democracy from the dungeon of
classism, tribal or ethnic chauvinism.
5.2 Conclusion
Having gone through Rousseau’s theory of law and civil state, one could see that such
was made possible because there was an agreement, a contract among the people. In
the same vein, democracy in Nigeria could be made firm and relatively sound based
on the citizens’ agreement. This of course must be rooted in the spirit of law. For
Rousseau, the state is nothing but the association of citizens under law. It is only in
civil state, can man be ennobled through the use of reason. Here all men have a
107
birthright to freedom and equality. Hence, Nigeria, in her political life therefore,
supposed to be lived in a way that it can secure the common good of the citizens.
These include; social justice, freedom, equality, security and other basic amenities
which Nigerians have rights to as citizens.
Nigeria has the chance of joining the list of great dynamic democracies of the world
where laws are judiciously respected. Certainly, no country can overlook the principle
of rule of law and survive its major challenges. A democratic state finds legitimacy in
the rule of law and legitimacy breeds transparency, accountability, security, justice,
equity, good governance and indeed, real civil society. If we understand properly
Rousseau’s concepts of ‘law and civil state’ and the reason why civil state is preferred
to the state of nature, we shall not drag our contemporary society back to the original
state (the state of nature). Nevertheless, proper knowledge of the essence and
dynamism of the civil society as well as its demands on the modern man, will surely
improve the exploitative relationship between the leaders and the led. Rousseau
therefore, has proved himself a great apostle of freedom, equality, human rights and
social justice. Hence, his theory, can offer Nigerian democracy the best platform for
the attainment of societal development, peace, stability and progress, notwithstanding
its weaknesses.
108
End Notes
_________________________________________________________
1
Marcus T. Cicero, On the Commonwealth and on the Laws (New York: Cambridge
University Press, 1999), 22
2
Jean-Jacques Rousseau, The Social Contract, trans. Christopher Betts (New York:
Oxford University Press, 1994), 101.
3
Marcus T. Cicero, On the Commonwealth and on the Laws, 21-22.
4
Egodi Uchendu, et al, “Introduction: Discourse on African Leadership,” in Perspectives on
Leadership in Africa (Nsukka: Afro-Orbis Publishing Co. Ltd., 2010), 1.
5
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