Introduction

Social contract theory has been extensively been researched and debated on globally by very
many scholars. Morals mostly depend on rely on a certain agreement that is made in a society
which all those within the society are bound by it and it is their duty to conform to it. This theory
has been argued by many proponents; among the most influential include Thomas Hobbes, John
Locke and Jean- Jacque Rousseau. Their arguments and their views will be briefly discussed in
this term paper.

Kenyan constitution, with theoretical views of various scholars.

Thomas Hobbes talk of human being ceding power to the state (ruler)and by doing so people
make contract through with the state, this argument has been very influential land has been
explored in his work of social contract theory. He asserts that people contract with the state
(social contract) for them in return to have good life.Having said that. Practical example in
Kenya is that all government offices and all independent commission as they have been listed in
248 254 of the constitution are the government who are supposed to fulfill their part of the
contract too.

Hobbes describes life as good, and to him that is exactly what human beings should have
because that is the desire of each and every person and that is the expectation of every human
being in life, to get satisfied or realize their satisfaction. He therefore avers that when men,
through social; contract, renounce their rights to second party for protection and his line of
though based on this premise introduce the principle of reciprocity. Thomas Hobbes believes in
an absolute rule of one person who would be mandated (through the powers given by the people)
would be workable to bring a state and take it to another step as far as good governance is
concerned. He believes in absolute monarchy and absolute sovereignty, one that can be
characterized as indefeasible and unalienable.1

Social contract theory in our Kenyan context has been restated and strongly describe in our
recently promulgated constitution of 2010. Human being are to live to be bound by Laws, this is
according to American Jurist Prof. H.L.A Hart and that they are entitle to unalienable universal
rights 2 Kenyans did make or create a social contract through the endorsement of the proposed
constitution which was voted for overwhelmingly. This contract was made on the 4th of August
2010.

In this constitution, people ceded their rights to the state in return of many other services from
the state which ordinarily cannot be offered by an individual yet very vital and essential to the

1
Hampton, Jean. 1986. Hobbes and the Social Contract Tradition. Cambridge: Cambridge
University Press.
2
Universal rights are those rights that have been accepted all over the world and they are not debatable all over
the world. They are inherent supreme rights for instance right to life.
survival of humanity. These services for example include, security, which is paramount, water,
fire fighting services, clean water e.t.c.

If one carefully go through the preamble of the constitution, it states in its second last paragraph
that through endorsing the supreme document, they have exercised their sovereignty and their
unalienable right to determine the type of governance. It is however important to note that the
constitution is the supreme law of the land which everyone is subject to and it is the same
document that creates all the offices that I had earlier mentioned in the first paragraph.

Inferring from the constitution, Article 1 (1) of the constitution expressly states that

All sovereign power belongs to the people of Kenya, and shall be exercised only in
accordance to this constitution 3

As citizens of Kenya, this is our social contract with the government and so we renounce some of
our rights to the state pursuant to Article 1 (2) of the constitution which states that

the people of Kenya may exercise their sovereign power directly or through their
democratically elected representation4

It goes further to explain in Article 3 when the sovereign power of the people is delegated to
various organs and offices so that when Kenyans die due to insecurity, we as the people of
Kenya would call the government, that is putting attention to the president, that something is
wrong because one of the party is in breach of the contract we sealed in our constitution.

The president and the executive derive the power from the people, Article 129 (1) states that
executive Authority derives its authority from the people of Kenya and shall be exercised in
accordance to this constitution

Therefore, when cabinet secretaries, principle secretaries and all the government breach the
contract has entrenched in Article and 129 (1) through for example corruption, or abuse of office
and malpractices which are unscrupulous as per Article 10 (2) of the constitution and the whole
of chapter six that touches on integrity issues. If those terms that the people had while making
the contract with the government are breached, it would therefore prompt the people through
mass action, motivated by a collective common interests protest to remind the government of the
existing contract between them.

On the side of the judiciary, Article 159 (1) states that judicial authority is derived from the
people and vest in, and shall be exercised by courts and tribunal established under this
constitution this is our social contract too, so that we the people remind the sovereign and
therefore all these organs should only act within the confines of powers that we have given unto

3
Article 1 (1) Constitution of Kenya 2010
4
Supra note 3
them to take care of our needs. For this explanation, it is expectation of Kenyans that the
judiciary be a fair, just and transparent body that its existence is to ensure justice and fairness
exist. The judiciary interprets the law and it is the custodian of the law. At the same time the
bedrock to the observance of the rule of law.

If however the judiciary becomes corrupt, biased and inordinate, then they have breached the
contract and men would go to streets to protest and ask the government to clean up the judiciary
so as to have transparency. People would call for reforms in the judiciary. When Hobbes talks of
life being good, he meant that the needs of the common mwanainchi are met and that their
interests are addressed and expectations met. Like the distribution of land resource among
communities and individuals in Kenya.

Our parliament also derives its power from the people. Article 94 (1) states the legislative
authority of the republic is derives from the people and exercised by the parliament. The
parliamentarians are too bound by the principle and national values articulated in Article 10 of
the constitution. All these above are therefore basically the social contract the people of Kenya
has made with the state. And this is also the reason why today, there is a campaign called Okoa
Kenya that seeks to push the government to be more obligated to the contract because it has
failed to secure its people, rampant grand corruption and poor leadership which is a breach to
the contract we entered to. This consequently creates internal conflict from within the people and
would result to mass actions to remind the government of their contract

The above brief contemporary Kenyan social contract can be put in a simple diagram below.

People create the constitution through referendum

People
The constitution People
Of Kenya

People renounce or people renounce their rights

Cede their rights

The Government

Services that the

Services that the government the government

give in return e,g security provide

When there is unequal access to valued resources, services and positions in the society it leads to
emergence of conflict within state. Where there is inequality and due to differentiation that exists
in a society, people are harden and institutionalized so as to create a social relationship that that
determines who gets what, when and why as Herald Laswel puts it in his definition of politics.

When the state goes ahead to set some rules to bring order in the sense that it helps shape hoe
people should live their opportunity, their mental health and life expectancy. Ordinarily society
is a functionally integrated relative stable system held together by a basic consensus of values5.
Common interests and basic interpendence is the fundamental principle that the society is
operating with and therefore Hobbes thoughts are inviting our thinking to a state where people
bring our issues of individuality, achieving their interests through cooperation of many
(collective) consensuses.

Besides, conflict- coercion conception of society explains the fact that when individuals and
groups characterized by conflict and dissension and held together by coercion6, this would lead
to unstable society since every individual and group strives to maximize its own interests in a
world of limited resources and goods therefore triggering conflict. To Hobbes, this kind of
environment is a political system instigates man to leave a state of Nature and inclined to agree
to his social contract theory.

When state provides an environment whereby everyone lives in happiness, then social
integration would be a super one and it would be expressed by contentment therefore this action
mitigates all the potential elements of conflict and oil the machinery of social interaction. This
stabilizes the relationship between the citizens and the state. In a state where there few, elite or
oligarchs, they would use the law and compete in order to have their interests safeguarded.

Thomas Hobbes

He is one of the most influential proponents of this theory. According Thomas Hobbes, in
the state of Nature7 there is away for every man, a state of constant strive in which life of man
was solitary, poor, nutsy, brutish and short8. He further stated that when a man enters into a
society, law and government becomes necessary to bring order and also guarantee personal
security and this is what Thomas Hobbes asserts in his social contract theory whereby citizens
renounce or signs away their rights and powers to the state in return of protection. Roscoe

5
Developing societies
6
Block, Fred. (1977) :the ruling class does not rule. Notes n Marxist Theory of State.
7
This is state where human beings were just living together in harmony and peaceful coexisting, they were relying
on universal law and law of nature that human being should naturally be good therefore one should not steal or do
harm to one another,. In this state also there was plent in abundance so that competition never appeared between
them.
8
Hampton, Jean. (1986). Hobbes and the Social Contract Tradition. Cambridge: Cambridge University Press.
pound, the most influential American sociological jurists in his works posit that claims and
desires of society must be given description pursuant to the existing social needs and therefore
proposes law to be the only tool that would act as the social engineer and this law as earlier
explained are those that citizens themselves have agreed to be bound by them, and its enforcer is
the government through several agents. The same sentiments have been echoed in the works of
Jeremy Bentham who opined that happiness in a society can only be achieved by four goals, that
is subsistence, abundance, equality and security.

When all the aforesaid mention features are place then social contract is deemed to be
progressively diffusing into our social system as far as relationship with the sovereign is
concerned .it is usually the interest of the state to ensure that they commit itself towards giving
the people the best living environment failure to which they may result to generation of internal
conflict and protests 9.

It is important to note that human rights are inescapably impossible since it is only until when the
state respect these rights so that one can say the government is providing the conducing
environment to live. According to conventional definition human rights are internationally
agreed values, standards or rules regulating the conduct of the state towards their own citizens
and toward their own non citizens10 the state then in respecting these rights obligate themselves
to our social contract and the rule of law that we created in the spirit of the constitution. But
however, due to inequality in distribution of resources which id usually one of the causes of
poverty, the disadvantaged groups and the marginalized would t hen be prompted to revolt or
commit politicalviolence simply because the state has gone contrary to the spirit of the contract
they contracted with the citizens or the domiciled.

From the assertion above, the practicability yin our Kenyan context can be best explain and
inferred from the recent brutal killings and insecurity in the country especially the pastor;
communities. Foe example, the sole reason why the Pokot are in frequent war with their
neighboring communities like the Turkana and Njemps is because the state has been far from
them. They are marginalized and the state for a very long time has neglected them. They have
been treated as if they are not part of citizens of Kenya, hence, they take the role of the
government by protecting themselves and their property because the government, in breaching
the contract, failed to do so that is also the reason why it would be hard to separate a pokot from
his gun since they know at a state of ambush by other men the state is too far and cannot depend
them at any point so they have lived in their loves to protect themselves and their properties. This
is what Hobbes, Lockes and other proponents of social contract theory explains what happen
when man leave the State of Nature and lack another second party to provide rules that would
ensure peaceful coexistence and order in the state.

9
Erikson, Margarata S. (2001) armed conflict in modern civilization, oxford press. London
10
Peter, Baehr. R. (1999) 2nd (ed) Human rights: Universality. oxford university press. london
The northern parts of Kenyan communities feel like they have been neglected and discriminated
for a long time. Article 53 also takes care of them as well as Article 27 of the constitution and
may be hopefully this would cure these defect that had been caused by the former constitution
that and been transplanted from the colonial rule administration.

Socrates description of social contract.

In the name of social contract, Socrates accepted to die in prison. Socrates lived in Athens, a
city that had rules and laws and to him, he held the viewthat he is bound b theselaws and orders
and he would do as the laws requires whether he actually loves them or not. Socrates asserts that
he had an overwhelming obligation towards laws of Athens. These laws were the one used to
organize the state, which as John Austin puts it, have to be backed (laws) with some threats from
the government. When people respect and live as per the provisions of law then realization of
good life would be possible.

Socrates further says that if one is already grown up, he has a power and will of choice to leave
or stay in Athens. To him, deciding to stay and live in Athens meant that he is bound and subject
by all the laws of Athens and so explain his acceptance of death penalty in prison11. He based
this on the social contract between the state and citizens.

From the existing social structure, bonapartism12 it can be compared with that according to
Dhurkiem , is one experience that engages the society to many mechanical confrontation 13 with
the masses and this has a profound implication to our superegos. In this state, the state should
supererogate in their entire policy framework to ensure that everyone in the state has been
accommodated. In Hobbes mechanistic theory of human beings, explicates that human beings are
necessarily and exclusively self-interested. He added averments that all men only perceive to be
in their own individuality considered best interests- they respond mechanistically by being drawn
to that best desire and repelled to which they are averse14

Hobbes continues with his argument above and state of Nature, that demands that every person is
motivated by his own or desires of life, what he or she want to acquire, achieve or the kind of
lifestyle one would wish to live and attain to a point of satisfaction. He therefore gives an
explanation of human vulnerability and futility to have an infinite appetite and can only be
genuinely be concerned with our selves and for that reason we cannot create good life for
ourselves. At this point therefore, human beings contract with the second party (state) for
guarantee of many issues including good life. Based on the above argument, Aristotle also
formed an opinion that government survive from its polites(citizens)within its polis or

11
http:// www.wikipedia.com
12
A populist alliance between the bourgeoisie(the haves) and lumped proteleriat (have nots) characterized by
strong leadership and conservative nationals.
13
Merger,Martin. N. (1999) Social Inequality Patterns and Processes.Carlifonia. Mayfield Publishing Company.
14
Gauthier, D. (1991) Moral Dealing, Contract Ehics and Reason. Cornell. Cornell University press
konoina(community) it must promise its politesan environment that they may brag that they live
in eudemonia (happiness)15.

Aristotle brieflt explains his view on politics that would ultimately affects the social contract and
would be summarized in the below diagram. He asserts that politics has to have effect and
explains by exploring four cause that puch the whole architecture of politics that would be
effective in having the social contract in place. These causes include, the material cause, formal
cause, efficient cause and the final cause.

Fashioned by
Ruler/government
The constitution

Formal cause defines the government body Politicians/all officers

In the government

City state..

Good life

happiness

Final cause

Hobbes say that the sole reason why adults care for small children can be explicated in terms of
the adults own self-interest and he equally equates the politea as children and the parents as the
polis , they then creates social contract between the citizens and the state based on Hobbes
argument. He posits however that the state is the one which would be more likely to survive and
so individuals should incline to be bound by the dictates of the state.

Due to the reasoning capacity of human beings, Hobbes think sthat the instrumental nature of
human beings is capable of changing things as they appear or the way they should. Human
beings can therefore determine for themselves what they thinkitcan serve their needs best and he
thus brings out the argument that justifies the reason why people ought to be willing to submit
themselves to a political authority.

The justification that Thomas Hobbes gives for his statement is that given that considering the
nature of man, they are self- interested yet they again are rational so that they are rational enough
to chose to chose to submit to the authority of the sovereign in order to live in a well established

15
Mark Jameson. N.(2001) Politics of Aristotle. New york
civil society 16that is accommodative to all their needs. According to Hobbes, when man is in
state of Nature, people anticipate fear for losing his life to another, this is because no one can
purport to have a capacity to sustain their need as and desires to satisfaction. No man would wish
to get extinct and therefore every human being would want to survive has to step on other man to
detriment, that is in the State of Nature.

In concluding Thomas Hobbes , to have a suitable society with the best stability and peaceful
coexistence, men should renounce their rights and some of their powers to the state and the state
to reciprocate by giving the society life in return as they provide enforcing mechanism to the
contract that has been made.

John Locke view on social contract.

John Locke is profoundly convinced that the citizens have the right to revolve against their King,
he enormously refute Robert Filmers Patriarchal that political authority was derived from
religious authority. According to Locke, the state of Nature is the natural condition of mankind,
the state of perfect and complex liberty to conduct life as one sees it fit, free from interference of
others17. He goes further to explain the State of Nature by saying that though there is no civil
authority or government to punish people for transgressions against laws.

Locke asserts that since people are equal tone another in such as state, then they are to be bound
by the law of nature, which generates its basis on morality that is given by God. To Locke, men
would then in this State are at liberty where one can freely without limitation and interference
pursue for contentment and satisfaction. Most importantly, Locke opine that as political society
grow, for instance from families come together in State of Nature and each agree to give up to
the executive authority who have the power to punish those who transgresses the laws of the
land.

Locke comes out very clear on his argument on social contract and subject the government on a
clear raw deal that protection of peoples property, including their own bodies should be
guaranteed because they cannot protect themselves for reason they decided to abandon their
state of Nature to contract with the government18. Subjecting our selves to the will of majority
so that we are under the command of sovereign which all of us submit ourselves to though
explicit consent is the best contract that John Locke advocated for.

Jean Jacque Rousseau posit that human beings over time from State of Nature, progressed into
civil society, unlike Hobbes and Locke, to him, state of Nature was peaceful and romantic so that
people who exist in the system are sober human beings who interact in common unity and

16
Held, Virginia. 1977. "Rationality and Reasonable Cooperation." Social Research (Winter 1977): 708-744.
17
Locke, John. (2003) Two Treatises of Government and A Letter Concerning Toleration. Yale University Press.
18
Rousseau, Jean-Jacques. (1987)The Basic Political Writings. (Trans. Donald A. Cress) Hackett Publishing
Company
solidarity, there existing no conflict or incompatibility or any kind of interests or ideas because
nature gave them all they need.

To Rousseau, nature and its small size of the population excluded the ideal principle of
competing for resources because the abundance of the same excluded the element of scarcity
hence there was no fear for conflict19.

Invention of private property triggered greed, corruption, inequality, competition and vanity,
Jean also blames the development of private property as the prime reason why humanity fell
from Grace out of state of nature20. In Kenya, article 43 of the constitution gives everyone
right to own property, it is one of the rights that is entrenched in the constitution.

In his most quoted statement, that states that man was born free and he is everywhere in
chains. What he meat was that men are born free to state of nature but as a result of
developing human civilization, that freedom has been seriously substituted by many other actors
hat came to play and hence it is compromised by factors like economic patterns, social
inequalities, scrambled scarce resources and competition of mankind. According to Rousseau, it
is evident that men cannot go back to the state of nature and therefore the aim of the government
or sovereign is to restore this freedom to us, hence bring us together to live in harmony with the
help of certain settled orders.

Concluding Jean Jacque position, he recommends that our particular wills be submitted to the
collective or general will created trough an agreement (social contract) between the state and
other free equal persons. So he base the social contract on the ground that it is only people who
justify the authorities , that is generated through agreements made through covenants, for
instance the constitution.

Criticism to social contract theory.

When one signs away or renounce his rights and powers to the state, they are aftermath forfeited
which eliminates something in return, so the question that critiques ask is, is this position really
necessary?21They also state that the issue of using some kid of force negates the fact that a
contract ordinarily should be voluntary22other that critics this theory are the race- conscious
philosophers, sexual contract proponents and those who are feminist. For instance Carole
Pateman's argues that lying beneath the myth of the idealized contract, as described by Hobbes,
Locke, and Rousseau, is a more fundamental contract concerning mens relationship to women.
Contract theory represents itself as being opposed to patriarchy and patriarchal right. 23

19
Vallentyne, Peter. (Editor). 1991. Contractarianism and Rational Choice: Essays on David Gauthier's Morals by
Agreement. New York: Cambridge University Press.
20
Macpherson, C.B. (1973). Democratic Theory: Essays in Retrieval. Oxford: Clarendon Press.
21
Okin, Susan Moller. (1989). Justice, Gender, and the Family. New York: Basic Books
22
Rawls, John. (1971). A Theory of Justice. Harvard University Press
23
Pateman, Carole. (1988). The Sexual Contract. Stanford: Stanford University Press
Conclusion

Men need a good and habitable environment, one that can be describe as peaceful and
harmonious so as to feel that their humanity is well respected. This cannot be realized if
everyone would be doing all that according to him is right or wrong, otherwise the society would
be in a mess and very harsh and brutal to existence of anyone. It is thereof through a contract
with the state to guarantee good live in return if people renounce their rights to the government.
From there, the government obligates itself to protect the people and ensure they provide a happy
environment for its citizens.
References

Primary sources

The constitution, 2010.

Secondary sources

Books

Hampton, Jean. 1986. Hobbes and the Social Contract Tradition. Cambridge: Cambridge
University Press.

Block, Fred. (1977) : the ruling class does not rule. Notes n Marxist Theory of State.

Hampton, Jean. (1986). Hobbes and the Social Contract Tradition. Cambridge: Cambridge
University Press.
Erikson, Margarata S. (2001) armed conflict in modern civilization, oxford press. London
Peter, Baehr. R. (1999) 2nd (ed) Human rights: Universality. oxford university press. london
.Merger,Martin. N. (1999) Social Inequality Patterns and Processes.Carlifonia. Mayfield
Publishing Company.
Gauthier, D. (1991) Moral Dealing, Contract Ehics and Reason. Cornell. Cornell University
press
Mark Jameson. N.(2001) Politics of Aristotle. New york
Held, Virginia. 1977. "Rationality and Reasonable Cooperation." Social Research (Winter 1977):
Locke, John. (2003) Two Treatises of Government and A Letter Concerning Toleration. Yale
University Press.
Rousseau, Jean-Jacques. (1987)The Basic Political Writings. (Trans. Donald A. Cress) Hackett
Publishing Company
Vallentyne, Peter. (Editor). 1991. Contractarianism and Rational Choice: Essays on David
Gauthier's Morals by Agreement. New York: Cambridge University Press.
Macpherson, C.B. (1973). Democratic Theory: Essays in Retrieval. Oxford: Clarendon Press.
Okin, Susan Moller. (1989). Justice, Gender, and the Family. New York: Basic Books
Rawls, John. (1971). A Theory of Justice. Harvard University Press
Pateman, Carole. (1988). The Sexual Contract. Stanford: Stanford University Press

Internet sources.

http:// www.wikipedia.com

www.legaldictionary.com

www.academia.com