MORAL JUSTIFICATION OF THE STATE INTERFERENCE WITH THE RIGHTS AND LIBERTIES OF THE CITIZENS
In the history of political philosophy there have been different views as to what relationship should exists between the citizens and state in terms of state’s power, authority compared to individual right and liberties.
The state is seen as a people living in a given territory under one law with a single governmental system. Some exponents conceived of the state through its characteristics and nature, while others conceive it in terms of it’s function and aims.
The origin of the state poses a problem in political philosophy because it lacks the element history and anthropological works. Among the first questions which political theories raised are what is the origin of the state? Have men always liked under some forms of political organization? If they have not, what are the causes that brought the original establishment of modern state? Some of the theories concerning the beginning of the state are, the divine right theory, the material theory and the social contract theory.
The main aim of the state is the good of all in the society. The state Aristotle tells us originated for the purpose of life and the end of the state is therefore ethical. The state also performs more active function.
On good moral ground then a mere overseer, bearing in mind the modern challenges of state such as economic, education and technological development.
The state also provides good amenities and social services such as school, good roads, hospitals, water, electricity to mention a few. To achieve these aims for example, the state might be seen by having to impose taxation, which might been seen by the people as encroachment.
Right in the first place are generally defined as power of free actions. But according to H.L.A. Hart, right generally mean in the minimal sense, these conditions of social life without which no man can seek in general to be himself at this best. While, liberty could be seen as freedom exemption from restraints such as justly impose by law. But liberty has it’s negative and positive sides.
The relationship between the state and the rights and liberty of citizen is very close, according to Hegal, the state is order, legal and moral peace. The state providing for law enforcement agents to prevent violence that might obviate a peaceful atmosphere. This relationship is like that of father and son. The state performs paternal functions in protecting the rights and liberties of the citizen while, the citizen who are the son are duty bound to obeying the state in their potentials are to be actualized.
In order for the state to meet its focus or end, it has to set in taxation, law and this is what the citizen call encroachment.
TABLE OF CONTENT
Table of content
1.1 Definition and origin of the state
1.2 Origin of the state
1.3 Functions of the state
References and notes
2.1 The definition and origin of rights and liberties
2.2 Origins of rights and liberties
2.3 Relationship between state and the rights / liberties of citizen.
References and notes
3.1 Case of state’s interference with rights and liberties of the citizens
References and notes
4.1 Moral justification of the state’s interference with the rights and liberties of the citizens
4.2 Summary and conclusion
References and notes
BACKGROUND OF THE STUDY
In the history of political philosophy there have been different views as to what relationship should exist between the citizens and the state in terms of state’s powers, authority compared to individual rights and liberties. An exponent of totalitarianism for example would want to argue that states authority and powers superceded the liberties and right of the citizens. The totalitarianism would justify a state’s interference on rights and liberties because they usually see the state as a higher organism then the individuals, accordingly to them, if these small organism (individuals) are to actuate their potentials, the state a higher organism of which they are a part, should first actualize it’s potentials before a favourable atmosphere can be created for individuals to achieve theirs.
The liberalists on the other hand would want to argue that the rights and liberties of individuals be abundantly unrestricted. They tend to perceive the person in the state individually and they feel he should be given a great amount of freedom to develop his innate potentials to the maximum. The purpose of this essay is to answer the rather vexed question being asked in political philosophy, is there any condition whatsoever in which the state can justifiably, interfere in the rights and liberties of the citizens? Or put differently, is it justifiable for human beings to be born free naturally and yet be put in chains by the artificial organism called the state?
For the purpose of actualizing the aim of this essay, an objective position would be maintained without taking into cognizance the position of the totalitarian and the liberalist as exemplified above rather, logical and morally substantive argument would be used to support this essay. Logical in the sense that the state is logically bound to interfere with rights and liberties of individuals on the basis of their definitions and function that could ascribed to individuals on the other. While the moral argument is based on the function the state has perform for the citizens that is functions which are morally good or geared toward moral ends.
This essay is also aimed at resolving the famous J.J. Rousseau’s Paradox that “Men are born free but everywhere are in chains”1 This justification will employ the argument that men needs some amount of restraint which men are lacking and ought to be headed, which made them transcends the state of nature to a well organized state. If it is assumed that this need has been consciously realized and people went into a contract which now resembles a contract situation can be justified in behaving in a certain manner to obviate the circumstance the need for which led to the formation of a state.
Hegel’s theory of the state, and what he said about the relationship between the state and its citizens could also justify it, according to Hegel there is no other power superior to the sovereign state disputes or conflicts between different individuals in the state are settled by the state through the enacted laws and not through whimes and Caprices.
The state according to him is not a human construction freely and deliberately set up by some kind of social contract. Human beings did not decide to form a state to provide their needs, as we are told by philosophers like Thomas Hobbes and John Locke.
STATEMENT OF THE GENERAL PROBLEM
A lot of misconceptions have been made about the relations that exist between the state and its citizens especially when it relates to power, authority and rights activism.
SIGNIFICANCE OF THE STUDY
This study will help to unravel the sticking relationship between the state and its citizenry as regards the power of the state and right activism which would in turn help to maintain a cordial relationship between the citizenry and the state power.
1.1 DEFINITION AND ORIGIN OF THE STATE
1. DEFINITION OF STATE
The question of what really is a state has never been an easy one because the state has been conceived of in different ways and varying perspectives. Some people have conceived of the state through its function aims.
The state is seen as a people living in a given territory under one law with a single governmental system extending to all of them and to no one else, are the members of a state, but the state as an institution does not embrace all roles in which they are but only political or legal roles.
Though this definition is too specific because it makes it categorically clear that the state can only plays political or legal roles and it will not be taken seriously within the ambits of this essay. In any case, to gasp or capture the basic aim of this essay, a brother analysis of the definition of the state is required; hence it becomes necessary to employ the two concepts of a state highlighted above.
2. STATE CONCEIVED OF IN TERMS OF FUNCTION
Every state irrespective of its population size and economic potentials strives to promote peaceful relations among its people as well as its outside relationship with other foreign state. Based on that conception of the state, it is agreed that it is the duty of the state to promote the greatest happiness for the greatest number of people. The state is an institution set up to promote social good on the largest possible scale. And in attempting to achieve this purpose, the tendency is for government to make themselves more and more conspicuous especially by the planning of economic life. The state aims first at ensuring the protection of integrity of the territory from foreign aggression and the personal security of the individuals. To achieve this goal the state defines and punished crimes. Administer justice, maintain the police and fighting forces and conducts of civil disobedience these activities of state are refers to by liberalists as interference.
The state protects the right to private property, together with the right to the free transference of properly to fulfil contracts freely entered into political rights and duties is also another basic function they have to perform, the state determined the political rights and duties of citizens, passes laws to regulate voting and gives directives on other voting procedures.
From the above conceptual analysis of the state, it becomes imperative to note that modern state is a social service state, a positive state as compared to the role of the citizens, to uphold social standards to prevent exploitation and manifest justices to remove the needles hazards of economic struggle and to assure and advance the general interest against carelessness or selfishness of particular groups.
Granting the function of a state and many other which the state still exercises power on. It is also important to consider the state from the conception of characteristics and nature.
CHARACTERISTIC OF A STATE
According to this view, there are certain basic characteristics that are common to all either jointly or singularly designate them as state, much characteristics and nature includes. :
i. Territory: - There must be a given territory and this is the basic characteristics, a group of people has to be necessary like within a given territory boundary to be regarded as a state not minding whether the group is homogeneous. The territory must be defined and endorsed with all the resources like air, space, minerals, technology, climate and geography.
ii. Population:- It must have a definable number of population with distinct characteristics features.
iii. Government: the state must have a government, a body of people charged with the responsibility of controlling the state machinery of power with all institutions.
iv. Constitution: - Moreover, a state must here the ability to wield power with absolute jurisdiction within the given territory and these powers are enshrined in the codified laws called constitution. People come together to regulate their progress among themselves and to achieve this goes a constitution is promulgated. A constitution is an agreed fundamental principle written legal or extra on which a particular state operates.
v. Legitimacy: - With this characteristics, a state makes itself accepted to the people and its polices and decision are binding within that territory. The state both civilian and military tries to legitimate their coming by the ills of the past government.
1.2 ORIGIN OF THE STATE.
The origin of the state poses a problem in political philosophy because it lacks the elements of history and anthropological works. Among the first question which political theories raised are. What are the causes that brought the original establishment of modern states?
There are various theories concerning the beginning of the state
a. The divine right theory
b. The force theory
c. The evolutionary theory
e. The social contract theory
However, for the purpose of actualizing the objectives of this essay, it becomes necessary to discuss the four common theories relevant to the theme.
a. Theory of the Divine Origin:- This is the school of thought that has it that the state came into being as a result of divine creation. It must have been as punishment of mankind. Medical period this theory reigned supreme, they believed that the state has been established by the ordinance of God, its have been established by an ordinance of God, Its rules are divinely appointed; they are accountable to no authority but God. Thus we are told in the bible.
Let every soul be subject into the higher powers, for there is no power but God. Whosoever therefore resisted the power resisted the ordinance of God and they that resist shall receive to themselves damnation3.
From the above biblical extract, it is clear that a king being the head of a state can never be monstrously vicious even if a king is wicked, it means God has sent him as a punishment for people’s sin’s and has laid upon them, granting the above views to be true, it is clear that the actions of the state to the individuals are justify, they are not regarded as interference because of the fact that all the government activities.
b. The Force Theory:- In its simplest form this theory may be stated thus; War begat the king. The state is the result of the subjugation of the weaker by the stronger. It is the belief that the state came into being as a result of conquest or coercion. Hume gave an expression to this similar idea of this theory. That the first ascendant of one man over multitudes began during a state of war, where the superiority of courage and of genius discoveries itself most visibly where the pernicious effects of disorder are most sensibly felt. The long continuance of that state, an incident common among savage tribes, incurred the people to submission4.
A state is founded when a leader with his band of warriors get permanent control of a definite territory of a considerable size.
Historically speaking there is not the slightest difficulty in proving that all political communities of the modern types are their existence to successful warfare5.
Thrasy Machus would support this view, according to him, “Justice is the interest of the stronger”, Rulers makes laws to protect their interest which automatically becomes what is just and right thus justice in every state is the interest of the stronger.
c. The Evolutionary Theory: - This considers the state, neither as a divine institution nor as a deliberate human contrivance, it sees the state coming into existence as a result of natural evolution. The preposition that the state is a result of history means that the state is a gradual and continuous development of human society. Out of a grossly imperfect beginning through crude but improving form of manifestation towards a perfect and universal organization of man.
Political consciousness is spontaneous, natural twin born, with man and the family, Aristotle was simple stating a fact when he said man is by nature a political animal. The needs for order and security is an ever present factors, man knows instinctively that he can develop the best of which he is capable only by some form of political organization. At first, it might be that the political unconsciousness, but just as the forces of nature operated long before the law of gravitation, political organization rested on the comity of mind, unconscious, dimly conscious of fully conscious of certain moral ends presents through out the whole course of development.
d. The Social Contract Theory:- The substances of this theory is that the state is the result of an agreement entered into by men who originally had no government organization, this means that the history of the world is divisible into two clear periods. The periods before the state was instituted and the period after. In the first place, there was no state no human authority to formulate laws, men lived subject to the laws of nature. After some time they parted with their natural liberties and agreed to obey the laws prescribed by the state.
The idea of a social contract could be seen as people suffering from anarchy as illustrated by the proverbial tendency of a large fish swallowing a small one. In his work the crito,6 Socrates is presented as awaiting calmly the execution of his sentence, even though he considered it unjust, because he would not break his covenant with the state by escaping from prison into exile.
There are three notable social contracts theorists; they are John Hocke (1632 – 1704). Thomas Hobbes (1588 – 1679) J.J. Rousseau (1912 – 1978). The contractarians have a common view, they all used the theory of the state of nature as a premise in arriving at the theory of the social contract. They have a common departure which is the state of nature but their point of divergent is the disagreement on how the state of nature. Despite their diverse views the fact remains that the state of nature was not favourable enough to enhance political, social and economic development, hence the social contract. Every person is expected to obey the rules of the state and any individual that disobeyed must be forced to conform or suffer the penalty, every individual must be forced to be free, that is obeying the state.
1.3 FUNCTIONS OF THE STATE
Having studies the definitions and origin of the state it become necessary to link up such pervious analysis to the role, they are to perform on behalf of the citizens. The main aim of the state is the good of all in the society. The state Aristotle tells us, originated for the purpose of life. The end of the state is therefore, ethical the state exists for the increase of its population or wealth or for empire or the extension of its influence. It exists for the exercise of the qualities, which make men good citizens, good husband father, neighbors, and good heads of households. The ethic end of the state is subordinated to convenience in Hocke. His concern is not with the “Good” but with the “Convenient”. The great end of men uniting into state is the preservation of their personal rights and liberties.
All state, no matter the nature performs almost the same function such function could be classified into two:
a) The function as a night watchman
b) The paternalistic function
The function of a night watchman: This is the first major function of a state, this function sees the state as playing more as a passive function, for the state facts as a mere overseer. But the state does in fact in some cases perform more active function on good moral grounds than a more overseers, bearing in mind the modern challenges of a state such as economic, education and technological development and a situation where the general welfare of the citizens is used as a surrogate for measuring a good state. Robert Norzick conceives of the state in terms of a minimal function of the night watchman. In this case, the state performs the limited functions of preventing theft, fraud promotion of the enforcement of contracts and agreement guards against the use of force7.
The paternalistic functions: By this function the state can make demands of affirmative action or restraint forms its members. The father should be seen to promise a positive role and in the sense of what the law does by prohibition in terms of negative ends. This involves the choice of actions for citizens in bid to promote their welfare and happiness.
This paternalistic function is a way of providing the positive aspects of liberties for citizens by way of social services such as school, good roads, hospitals, water, electricity to mention a few. To achieve these aims for example, the state might be seen by haven to impose taxation which might be seen by the people as interference. The paternalistic upon which mind and character may develop them selves. Similarly, the state is to maintain order, peace and security for its citizens, therefore creating a good habitat or environment for them to actualized their potentialities which is the only condition by which Aristotle could regard the state as good. This, the state does by providing for the law enforcement agent to prevent violence that might obviate a peaceful atmosphere.
The state through those involvement punishes offenders in order to maintain social equilibrium. In the process rights and liberties are safeguard which is necessary for the well being of all, but at the same time, a violation of the natural tendencies are being put under check.
It could be observed that the function of the state is not basically to build individual character but rather the group character, the state is concerned with the general good of all in the society, this is the basic aim of the state and the individual character as member of such a group. This individual character also graduate into group character.
With definition and origin of state as a basis, it becomes imperative to progress in the next chapter by explaining the concepts of rights liberties as basis that would logically need the states encroachment.
REFERENCES AND NOTES
1. J.J. Rousseau The Social Contract and Discourse Translated and With Introduction by G.O.H. Cole (London : Dent and sons Ltd, 1973), p.165.
2. S.I Ben and R.S Peters Social Principles and Democratic state. (London: Hampshire pub. 1984), p.252.
3. The Bible, (RSV) Rom. B vs 1-2.
4. D.Hume Essay of The Origin of Government (Middlesex : Penguin Books, 1969), p.89.
5. E. Junks A History of Politics. (London : Jonathan Cape pub. 1971), p.72.
6. Crito, Socratic Discourse (Olympia : Every man pub. 1968), p. 369.
7. R.Norzick, Anarchy, State and Utopia (Oxford Macmillian Co, 1974), p26.
2.2 ORIGIN OF RIGHTS AND LIBERTIES.
Rights and liberties are provided by the state and are safeguarded by the state under a situation reminiscent of a contractual condition, rights and liberties are provided to make men actualize their aims, ambitions and aspiration within the state such rights and liberties range from political, legal as we have earlier argued are not in existent. This is because the state based its formation is artificial and if we regard rights and liberties as natural, it then means that such rights and liberties as natural, it then means that such right and liberties cannot than be discussed within the ambits of an artificial state.
Since rights and liberties could not be said to be natural for the very fact that they must not be discussed outside the conception of a state, it becomes pertinent to note here that the origins of rights and liberties could also be traced to the very idea of states formation, such theories of state formation includes the social contract, evolutionary, the theory of force and so on6. Most of these theories had earlier been discussed in the first chapter, but an elaborate analysis would be made on the social contract theory to enable us know the origin of rights and liberties. Following the theory of the social contract, it is believed that the modern state was formed through a contract between man and man in the society. This contract was necessitated as a result of the problems that characterized the original state of man called the ‘state of nature’. The subsequent formation of a state gave right to individual rights and liberties.
The philosophers that held the view of this contract theory were Thomas Hobbes, John Hocke, J.J. Rousseau.
Thomas Hobbes aloe would be used to discuss this very issue of rights and liberties. Thomas Hobbes (1588–1679) was an English man who started his political inquiry (the levitation 1651) with an analysis of human nature. According to him, man is essentially selfish, he is moved to action not by his intellect or reason, but by his appetites, desire and passion, Men living in a condition which is called natures, and such a war as is of every man against every man, not war in the organized sense but a perpetual struggle of all against all, competition, differences and love of glory being the three man causes. The life of man was solitarily, poor, nasty, brutish and short. Since this situation did not permit peace and harmonious living in the society a contract hand to be made, the essence of this contract was for man to give the liberties he had in the state of nature to a sovereign body, such liberty was the rights of self preservation which was inconsistent with living in peace. A space coercive power is instituted. The contracting parties are not the community and state, but the citizens and citizens. According to Hobbes, every man says to every other – 1 authorities and give up my rights of governing myself to this man or this assembly of men (government) on this condition that thou give thy rights to him and authorize all his actions in like manner.
A state is thus created; certain consequences follow from the certain of a state.
a. Government is sovereign and the sovereign power is absolute.
b. The sovereign law is, in general not counsel but command.
c. The rights and liberties of subject consist of these rights, which the sovereign (state) permitted.
Since the contract had been formed, the state now gives out the individual rights and liberties such as right to acquire properties etc.
The state having issued out such rights are now duty bound to protect such rights to make sure that no particular individual is at a lose.
From the foregoing therefore, it is quite clear that though there were what could generally be referred to as natural rights in the state of nature, the fact remains that the civil rights and liberties while is the concern of this essay originated from the formation of a modern state.
2.3 RELATIONSHIP BETWEEN STATE AND THE RIGHTS AND LIBERTIES OF THE CITIZENS.
There is a very close relation between the state and rights and liberties of citizens, the state according to Kelsen, Hegel and Rousseau is a total order, peace and security for its citizens.
Therefore, creating a food habitat or environment for them to actualize their potentials which is the only condition by which Aristotle will regard the state as good.7
These state close by providing for law enforcement agents to prevent violence that might obviate a peaceful atmosphere.
The relationship that exists between the state and the citizen’s rights and liberties is that of father and son, the state performs paternal functions in protecting the rights and liberties of the citizens while the citizens who are the sons are duty bound to obeying the state if their potentials are to be actualized. Every state irrespective of its population size and economic potentials strives to population peaceful relations among it people, each state must have a way of taking care of problems faced by the citizens, and each state has a duty to provide employment opportunities for its people who in turn have their own privileges and duties to that state. Every state helps to make life easier for its citizens by providing good roads, bridges, water, electricity and other infrastructural facilities..