Written by: William MA Chandler
The Caribbean and the continent many call ‘Africa’ today share, not only the same kin but, through colonial imperialism and its hegemonic imposition of cultural, economic and legal authoritarianism, a common thirst for the State, via government, to perform the role of messiah. It is very hard, therefore, but necessary for the people within our respective regions to imagine a reality in which they look to themselves for salvation, instead of government. I will make the case here, in brief, that long past are the days – arguably they never should have been – that law should go beyond the mere facilitation of human actions.
Law is A Commodity
The State is the only true collective of people. It is a cohobblopot or large admixture of individual actors (individual, family, community and organisations of various kinds and societies). Based upon Rousseau’s concept of ‘General Will’ which is enshrined in Article VI of the Declaration of the Rights of Man and the Citizen, the view that government represents ‘the will of the people’ is now commonplace throughout the world. It also false.
No branch of government represents the whole State. Neither do the branches combined represent the entire State. The government is but one individual actor – an organisation – given pre-eminence to administer the affairs of the larger group: society. In that sense, government has advantage over all other societal groups.
Government, like any other social actor, competes against other actors for resources. It is this competition that encourages government to violence. It is the accumulation of things that drives social actors whether those things be material or abstract. Law, therefore, when viewed as a mechanism to order accumulation, is supposed to be neutral in so doing. As I noted elsewhere outlining the Commodity-Form Theory of Law, this neutrality assumption is highly erroneous.
Law is a commodity. Like any other commodity it is desired for its utility. It just so happens, that today, we live under a system – liberal democracy (in particular) and democracy (in general) – which tells us that law should be the sole commodity (and sole property) of one social actor over the others: government. In other words, though all other commodities, in some way or another, are subject to competition, law should be excluded from competition. Undergirding the government monopoly assumption is the idea of a social contract, where law is the tool by which there is an expressed general will. Law is apparently the manifestation of the consent of the governed.
The assumption that government is a neutral actor in society ignores the fact that there is no such thing as neutrality in society due to competition. No representative of a constituency is neutral. No party member is neutral. No governor is neutral. No political donor is neutral. No judge is entirely neutral; though, to a large extent, the minimal exposure the judiciary has to the electorate protects judges from having to take on the same biases as politicians. Nonetheless, biases of other forms persist. Law is shaped by all of these social actors and more. Yet, law pertains more to individual citizens than to lawmakers.
There are more laws placed upon the actions of the private person than those engaged in lawmaking. Those laws are often prohibitive rather than pure administrative or laissez-faire. Why?
Government must have a subject. Therefore, it must subjugate. Government must have funds. Therefore, it must pillage by the violence of taxation. Government must be seen to be doing this thing called ‘the people’s work’; therefore, at the drop of a hat, legislation must be enacted in its hundreds purporting to make us safer; yet, all the more, in that safety, stripping people of their autonomy. In other words, the very collective will strips us of our individual will. The ‘oh dear’ moment of cognitive dissonance comes when we realise that it is very individual will that founds collective will.
Tell me, therefore, how can it be that as individual will evaporates by the actions of purported collective the latter remains? Is collective a self-made cloud? Surely, there is a fiction afoot: A fiction that tells us that in order for there to be freedom in society individuals must be collectively constrained.
In whose image is law made? The fiction of salvation by government makes us believe that no society is free unless we have unfree societies. Wherever government is taken, on face-value, as the embodiment of people, there is systemic unfreedom.
There can be, at any time, more than one solution to any issue. I see the issue laying before us – government’s monopoly over law – being solved not by stripping government of this monopoly (though that would be another solution to which I am not terribly opposed) but by recognising that just as law is a commodity, so too is government.
If law, therefore, is to be the monopoly of government and government is to be formed by this apparent collective will, why not materialise this abstract notion so government becomes the monopoly of the governed instead of a law unto itself as it currently is? I put to you that a government which secures freedom is a government which is free from all restraints, save those imposed upon it by those it serves.
Let us take from the philosophical notions of general will and social contract those principles and materialise them in actual contract. Surely, if it is that government gains a mandate through suffrage, that mandate comes with warranties and conditions. Let, therefore, the caveats of government – the restraints placed upon government by the people – be reflected in living contracts to which governments are bound. Let constitutions be backgrounds to living constitutions which find body in material documents to which every government formed is bound.
The State is the people; not the government. Law is necessary to facilitate individual and joint pursuits in peace. Recognise that government is an individual actor with its own mind. It has legal personality. You have given to one individual the power of all, without any tangible tools of correction. This is an error. It is time to materialise the social contract so that people may govern the governors and in so doing truly govern themselves.
Author: William MA Chandler is a Barbadian and Caribbean philosopher currently enrolled as a doctoral candidate in law at Queen’s University, Belfast. For any enquiries, you may contact him at email@example.com.