The social contract needs to be rewritten

The social contract needs to be rewritten

By, Srinath Sridevan and Aadil Currimbhoy are advocates practising at the Madras High Court, and work with HSB Partners

Finding cause

* The world does not seem to have answers to many of the problems thrown up by the epidemic, especially those faced by the poorest of the poor.

* No doubt, some small countries have claimed victory in containing the impact of the disease, but their claim appears to be hollow and even myopic; the fact is that these countries are affluent, and have sealed their boundaries.

* There is a view that mankind’s ancestors, in the course of evolution, formed the concept of social groups and resultant rules they would abide by.

* This is the most rudimentary form of what is known as the ‘social contract theory’. When monarchies and empires prevailed, it was easy to understand a social contract — to obey an identifiable sovereign, who in turn was deemed to be god’s representative on earth.

* But democratically elected governments have found it more difficult to derive the same legitimacy. With the growth of fundamental freedoms, such as those of speech and expression, unquestioning obedience to governmental authority began to fade.

* Unquestioned obedience is the holy grail of every autocrat. Some governments yearn for it. Modern society and modern governments also use the social contract theory to claim legitimacy for their actions, but rely more on the theory as expounded by Hobbes and Rousseau.

* While Hobbes believed that man, in Nature, was “solitary, nasty and brutish”, for Rousseau, man, in Nature was “born free”.

* However, both agreed that the social contract comprises two distinct agreements;

1. first, people agreed to establish society by collectively and reciprocally renouncing the rights they had against one another in unbridled nature and

2. second, they agreed to confer upon one (or more) among them, the authority and power to enforce the initial contract.

* Thus, the social contract comprises people agreeing to live as one under common laws and in enforcing those common laws justly.

* Modern day governments take this further. Their fundamental credo is that society is best-served if a government or other type of institution takes on executive or sovereign power, with the consent of the people.

Consolidating power

* We have seen governments go still further and use the power democratically invested in them to decide what is in the best interest of the people.

* Thus, there is a bending of individual free will towards the collective will.

* Ironically most such leaders constantly invoke “the will of the people” when consolidating executive power. So, the social contract is being used by modern governments to justify greater aggrandisement of power in the hands of the sovereign, under the garb of “public good”.

The case of two Indias

* The novel coronavirus pandemic has laid bare the falsity of this image.

* For example, access to information about this pandemic has not been equal. The access to resources to avoid the disease has not been equal. And, of course, access to treatment has not been equal.

* There are two Indias.

1. The first is an India that observes social distancing, buys its groceries and provisions by observing all precautions and largely obeys governmental directives about COVID-19 prevention.

2. The second is an India that crowds railway terminals to travel long distances, sometimes for days, to get back to native towns, and when that fails, decides to resort to the drastic step of even walking those hundreds of kilometres, defying all governmental directives.

* It is for the second India that the impact of COVID-19 has hit hardest and the impact has nearly nothing to do with the disease.

* It is often said that “we are all in this together”. But hardly so. We are not sharing the brunt of the pandemic with the poorest of India, the voiceless millions.

* Professor H.L.A. Hart once said, “freedom (the absence of coercion) can be valueless to those victims of unrestricted competition too poor to make use of it; so it will be pedantic to point out to them that though starving they are free”.

* The pandemic-caused crisis has shone a light on how governmental methods to deal with a crisis largely come to the aid of only those with a voice.

* All societies have some measure of inequality. However, in deeply unequal societies (where the Gini Coefficient exceeds 0.4, for instance) different strata of society will have very different needs to deal with a crisis of this nature.

* We have seen societies with lower Gini Coefficients deal with the crisis far better, because a uniform approach works perfectly when society is perfectly equal.

For those in governance

* The source of power in an unequal society is centralised, the response to the crisis will result in unequal relief to different strata of society. The more unequal the society, the more decentralised the response should be.

* The social contract which imbues a centralised sovereign with overreaching powers has clearly failed on this occasion, and will continue to fail every time a similar challenge is posed.

* The centralised sovereign will work well against a mighty external aggressor, but not against a microscopic pathogen.

* What is required is not just a decentralised approach but also a state which is sensitive and responds not only to the needs of those who cry out for help but also meets the requirements of those who are voiceless.

* Thomas Hobbes described the mighty state as a “Leviathan” which would rule by the will of the majority.

* He argued that once a ruler is chosen, citizens lose all rights except those the ruler may find it expedient to grant. While no elected government would publicly espouse such a position, it is the unwritten premise underlying every rule and diktat which is issued.

* As seen above, a Leviathan has its uses, as for example, in times of war or in a fight against terrorism. The novel coronavirus cannot be defeated by a Leviathan.

* COVID-19 can only be defeated by an empowered populace. The