This is a two part blog post. The first part of the blog post can be accessed here.
The Possibility of a Force Majeure Clause in The Social Contract
One of the liberal theories of political evolution and creation of a ‘sovereign’ is the social contract theory. Although there remain quite a few differences in the theories of the three major exponents, the paper seeks to look at the above imbroglio through the mutual understanding of the foundational growth and mechanistic evolution of the ‘State’. According to this theory, the State is an artificial institution that has been created by mutual agreement between the members of the society in order to transcend from a ‘state of nature’ to a ‘state of peace’. Hence, a contract comes into emergence, where the parties are the people themselves, who have decided to abandon their inherent nature of selfishness and move into a regime of laws and regulation by a superior authority. The people decided to give up their natural rights to the State who would act as the rightful trustee, and with the authority of the civil law, enforce these rights as well as preserve them in the long run. Such an evolution highlights the responsibility of the State to discharge its utmost duty in protecting these intrinsic rights that were given up with the hope of preservation. However, the umbrella of protection promised by the State in lieu of voluntary relinquishment has become invisible in these times of uncertainty as highlighted in the above parts.
In light of this clear breach, the major question that needs to be answered is whether these exceptional circumstances warrant a need to redefine the social contract in such a sense that there exists a high possibility of the existence of a force majeure clause. Moreover, it needs to be seen whether these extenuating circumstances make it impossible for the State to follow the duty chartered out. In order to offer a perfect solution, one which answers in the negative, a closer look at the intricacies of the theory is required.
Several scholars have tried to answer the possibilities that get triggered when the State fails to protect civil liberties or perform its obligations.[i] One of them being that the social contract becomes null and void for the individuals whose fundamental rights were threatened. Hobbes, while stating the logic of this corollary justification, states that if the State goes against the very basic reason behind the formation of the contract and seems to create a situation where citizens are forced to go back into a state of lawlessness, then the authority of the sovereign is not absolute and must be challenged. Here, the citizens have the utmost right to resist and must make sure that the State fulfills its promise of protection and preservation. According to Hobbes, there could never exist such an exceptional situation that warranted the repudiation of the obligations of the contract. Moreover, he could not even fathom that the social contract being used as a ‘tool of oppression’ to cause curtailment of civil rights and get the exact opposite of what was bargained.
Though, there exists an alternate narrative that the State is not a party to the contract, but a creation of one. This does not in any-way change the fact that the State itself led the abrogation of a contractual commitment that made individuals subject to its authority, despite being the product of the same contract itself. While talking about the existence of impossible circumstances that might affect the performance of the contract, Hobbes mentions that if the failure of performance can be attributed to the very operation of the contract, then the contract could be declared void. Additionally, if a feature or a direct product of the contract had the effect of frustrating the contract, then a force majeure justification could not be granted. Here, the State being the product of the contract has itself been the cause of the repudiation of the agreement. The violation in the present case has extended to the absence of a ‘common power of enforcement’ in the duty of the Leviathan. Such a scenario would lead to the achievement of the opposite ends of this mutual bargain and question the entrance into this voluntary arrangement in the first place. Thus, the exception of an extraordinary medical state cannot be applied to the non-fulfillment of the responsibility and cannot be the justification behind the subsequent repudiation of the contract.
Movement from the Schmittian Idea to a Kelsenian Idea of Political Ideology
Several scholars have proposed the adoption of a model propounding the theory of Carl Schmitt in this state of exception. Schmitt, in light of his theory of sovereignty, proposed that any person who decides as well as acts on an extraordinary situation while heralding control and obedience becomes the sovereign.[ii] In the present scenario, it is apparent that the Central government invoking its powers under the several statues discussed above has the absolute power to make decisions in this ‘state of exception’. The Schmittian theory supports the suspension of the basic norms, when there exists extreme peril to the very existence of the State.[iii] He believes that the final word and law in such a state of emergency must be of the sovereign.
Although Schmitt completely believes in the sovereign in the state of exception, he never proposes an authority that has unlimited absolute power.[iv] He discussed the possibility of transformation of a constitutional democracy into a totalitarian state, if the state of exception is instead made the rule. The abuse and innate deceit by the sovereign cannot be allowed to go unfettered and the judiciary must be provided the opportunity to adjudicate any issue. Moreover, the governance in such a situation must be according to the ‘Rule of Law’.
The solution of following the ‘Rule of Law’ as the possible and most effective solution of an abuse in the state of emergency seems to be the guiding ray of light in the dark times our country is in. In the current pandemic, the rule of law is not abandoned as the exception is not beyond the law but within the law, as propounded by Hans Kelsen.[v] In essence, Schmitt proposed that the state of emergency was like an exception to the general law itself and thus, outside the scope of an established legal order.[vi] On the other hand, Kelsen proposed that the difference between ordinary circumstances and a state of emergency is similar to the difference between a general law and a special law.[vii] The applications of these laws are different, but they are within an established order. Similarly, the exceptional medical state we are living in is not outside the domain of the application of the rule of law and is established within the periphery of the same legal order as well as is the only means of being provided justice. Hence, in the current scenario, the adoption of the Kelsenian theory seems the probable solution to the curtailment of civil liberties. The judiciary must not abdicate its role as the people’s ‘sentinel on the que vive’ and instead hold the State accountable for the violations of the fundamental rights taking place rapidly.
The courts have always had the transformative power to remedy the legacies of injustice caused primarily by the State, the one who was supposed to preserve and secure civil rights. In the current situation, one which is streaked with the abuse of the State itself in violating the most intrinsic and fundamental rights of a person, one can only hope for a semblance of protection from the judiciary. Looking at this curtailment of civil liberties through the lens of the social contract theory highlights the immediate need to make sure that the State enforces its obligation despite the justifications of utilitarianism, urgency, or necessity. Taking guidance from the theory laid down by Hans Kelsen along with several other judicial precedents, the paper argues for the preservation of the legal order through the application of the rule of law with the hope of acting as a reminder for all the institutional actors in a democracy.
_______________________________ * Anshul is a fifth-year student currently pursuing BA LLB (Hons.) at the WB National University of Juridical Sciences. Currently serving as the Editor of the Journal of Indian Law.
[i] Peter J Steinberger, Hobbes, Rousseau and the Modern Conception of the State, 70 (3) The Journal of Politics, 605 (2008) [ii] Carl Schmitt, Political Theology, 5 (1985). [iii] Aaron Roberts, Carl Schmitt – Political Theologian?, 77 (3) The Review Of Politics, 450 (2015). [iv] Giorgio Agamben, State of Exception, 126 (2005). [v] Andrej Zwitter, The Rule of Law in the Times of Crisis: A Legal Theory of the State of Emergency in a Legal Democracy, 98(1) Archives For the Philosophy of Law and Social Philosophy, 100 (2012). [vi] Horst Bredkamp & Melissa Thorson Hause et al, From Walter Benjamin to Carl Schmitt via Thomas Hobbes, 25 (2) Critical Inquiry, 247 – 266 (1999). [vii] Hans Kelsen, Introduction to the Problems of Legal Theory: A Translation fo the first edition of the Reine Rechtslehre or the Pure Theory of Law, 289 – 320 (1997).