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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. v 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 vi 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 vii 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 53 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. 62 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 72 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 73 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 74 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 75 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. 76 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. 77 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 78 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 79 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 80 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 81 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 82 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 83 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 84 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 85 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), 86 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.” 87 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 88 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 89 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 91 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. 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