Our contract with the state may be an invention but it should be honoured

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The Independent Online
IS society really a contract? Do I have a right to pure water because I obey a duty to pay council tax? And if I pay and the water still gives my children dysentery, can I sue? And if the government abandons me to starvation and my house to looting by marauding skinheads, do I still owe it obedience?

"Contract" was a smart way of thinking about society 300 years ago. Since then, it has become a dogma, especially in republics. Only the British, who avoided the French Revolution and almost all its works, were reluctant to assume that one's relationship to king and country was just the relationship between landlord and chartered tenant writ large.

The Law, often idiotic and painful, was still held to be the Law, and the king's right to take your lad off for a soldier was as strong if he were a good king as if he were a crowned lout who did nothing for his subjects. But in the last few years, I am glad to say, British subjects have become uppity. They want to become citizens, like the Americans or the French. They believe they have a contract with society and the state, and the right to make them perform their duties.

Two events last week put me in mind of contract theory. One was the Hillsborough judgment in Sheffield. The High Court declared that five police officers who witnessed the disaster were not entitled to claim damages from the chief constable for post-traumatic stress syndrome (PTSS). The other event, whose echoes were both terrible and strange, was the electrocution of the English-born murderer Nicholas Ingram in Georgia.

The Hillsborough problem, at one level, is the philosophy of law run mad, bolted like a cabbage. Behind the claims is an assumption like this: that each human being is born clutching a universal contract guaranteeing him or her against suffering and disagreeable sights.

Beetles black, approach not near,

Worm nor snail, do no offence.

So if a car breaks my leg, but also if I am born with one arm or if I find myself looking at the awful, blue-cyanosed faces of football fans who have been crushed to death, then the contract has been broken and somebody must pay. Sue them! In the Hillsborough case, the disaster was found to be the result of wrong judgements by the police officer in charge. Sue the chief constable!

In practice, because people are not idiots, almost nobody believes in the right not to be shocked. But when the social fabric itself begins to resemble some highly lawyered treaty in which everyone has judicial rights and duties, then you would have to be an idiot not to see that you could make money from it.

Lawyers saw that a long time ago, and helped to invent "post-traumatic stress syndrome". This is a bit of a circus horse as syndromes go. Of course, those who have been through foul things - battle, a terrorist bombing, rescue work after a bad air crash - often suffer psychic injury, although not all do. Some deal with the trauma by repressing it, that much underestimated natural remedy. Others learn to cope with the experience only slowly or not at all. The idea that there is a specific mental trauma injury, a PTSS as distinct as a bullet wound or a rotten tooth, suits solicitors nicely but it makes a poor fit with medical truth.

Then there was the execution in Georgia. Nothing good came of it, except that some supporters of the death penalty too young to remember the atmosphere of British executions felt ashamed of themselves. But the attitude of local people in Georgia was amazing. It was not just their casual affection for the death penalty: "turn on the juice, fry him and forget him." It was that they justified it "in the name of the people". "We owe this to the people of the state of Georgia," said the officials. The killing of Nicky Ingram, even after 12 years on Death Row, was the people's right. This remark is worth unpicking. At one level, it is full of democracy. The people of Georgia are the law-givers. That is not just the theory of the American Constitution, but it is how the people of Georgia think of themselves. They elect representatives to make laws for them, and they also elect judges to carry them out and punish offenders. At another level, though, this is not "modern" at all. The democratic mechanism is being used to maintain the most archaic of all ideas of punishment: retribution.

The state of Georgia owes the people an eye for an eye and a tooth for a tooth. That is its contract with the citizens, and if those citizens do not get a death for a death, an electrocution to avenge the murder of one of them, they will consider themselves cheated and raise hell.

In theory, you could argue that the contract would be better if the state offered to reform the murderer into a useful person. And there are more productive ways of withdrawing an offender from society than killing him. And logically it must be to the general good to punish a criminal in a way which allows for some disastrous miscarriage of justice to be put right. But this misses the point in two ways.

First of all, this is not a contract between equals. English tradition may regard the state as something separate from "us" which has always existed. For Americans, however, the state is an artefact which "we" create. This is a hiring contract, which defines a job and tells the employee how to do it.

Second, the people of Georgia are not interested in punishments which make offenders better at some time in the future. Especially in murder cases, they want a punishment which makes the people feel good right now. That is the essence of retribution. Professor Roger Scruton, who is Britain's leading authoritarian, wrote last week that "punishment is justified not by its effects but by the crime itself". Reform and deterrents are no more than by-products. The point is that the taking of a life requires the taking of a life; anything less terrible would be to defile the sacredness of life.

I reject all this, which seems to me little more than mysticism. But it is fascinating and ominous too, that Roger Scruton appears on behalf of the people of Georgia, as a believer in authority, who would normally regard contract theory as a myth and modern democracy as a mockery of proper order; whose position resembles that of Joseph de Maistre, a refugee from the French Revolution who spent most of his time in Tsarist Russia. De Maistre (even Hitler was a liberal in comparison) believed that rulers should be uncritically obeyed because they embodied the principal of order, established by God. Any suggestion that the subject might have rights or frame a constitution was blasphemy. De Maistre thought that fear was the condition for obedience, and considered the executioner to be the most important figure in the state - in some ways, more imposing than the king or tsar himself.

There are many warnings here. Scruton, like de Maistre, is right to say that social contracts and human rights are no more than inventions. And yet it is desperately important that we do invent and then honour them. There is no way back to that anti-Eden which Scruton sees in the past - and which romantic reactionaries like Jonathan Aitken see in modern Arab despotisms: limitless authority, a prostrate people, the beauties of a hierarchical order which endureth for ever.

Another warning is that the notion of contract is easily abused. In Georgia it serves to carry on a brutal, useless approach to punishment which avenges the past but does nothing to improve the future. The Hillsborough claims, on the other hand, ask constituted society to become a vast insurance scheme against everything nasty and unexpected. The theory of contract, in short, is a daft way to think about the state. But - as they say about democracy - it is the least daft way we have so far discovered.

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