New Social Contract Omtzigt is necessary, but not sufficient!
We encounter the ‘social contact’ several times in history. Socrates and Plato already paid attention to society and the place of man/woman in society in ancient Greece. For a long time, after Socrates and Plato, little or no attention was paid to this. In the 17th and 18th centuries, the idea of the ‘social contract’, in which the individual and his place in society are central, is again addressed by Thomas Hobbes, John Locke and Jean-Jacques Rousseau. For these authors, the social contract was the thought construct from which the ideal state model was designed. These thoights were practically forgotten until John Rawls proposed a theory of justice in the 20th century (1971). Laws and institutions, no matter how efficiently and well organized they are, must be reformed or rejected if they are unjust. In the 21st century (2021), Pieter Omtzigt proposes a number of blocks to help shape and build a ‘new social contract’ together. He sees a number of structural problems in the way our society is set-up: large companies have become detached from national societies, social institutions have become loose from their core task, and politics and institutions have lost their authority and effectiveness. The democratic constitutional state has become increasingly vulnerable and the confidence of citizens in this form of government seems to be continuing to crumble.
The political freedoms proclaimed in the French Revolution were the legacy of the social contract theories of the 17th and 18th centuries. On the basis of Rawls’ social contract theory, it has not been possible to integrate the ethical dynamics of the (neo)liberal constitutional state and socialism in practice. This has created major problems with power and counter-power. The proposals in Omtzigt’s social contract theory are necessary, but not sufficient, to restrain the power of the neoliberal constitutional state. The Platform 2local offers three elements, cryptocurrencies, local focus and cashback to respectively suppress the power of the international banks and the multinationals and promote prosperity and sustainability.
Social Contract theories from the 17th and 18th centuries
The contract theories of the 17th and 18th centuries used three phases: state of nature, state of society, and rule of the general will or law. The social contract deals with the question of when a regime or power is legitimate. This is, as it were, determined in a kind of agreement that the individuals of a society have concluded with each other, in which it is agreed who has the power and what that means. The main driver of the social contract of Hobbes is fear. He emphasizes that only the state has the capacity to create a basic security for all individuals. According to Locke, everyone has a duty to protect themselves and others. Rousseau wondered why people are unequal to each other. The social contract was drawn up by Rousseau with a view to forming a state of salvation, a paradise on earth (Du Contrat Social ou Principes du Droit Politique). According to Rousseau, people in the state of nature did not like each other, as Hobbes thought. The state of nature came to an end because humans were able to perfect themselves, which led to community building, mutual comparison, possessiveness, serfdom, jealousy, rivalry, vanity, ceasing and hypocrisy. Here people could kill each other and the law of the fittest applies. Man/woman here is alienated from its good self. In the third stage there could be a perfect state, after a liberation from the slavery of society. In this the salvation would manifest itself, which would be determined by freedom and equality. The social phase is replaced by the legal phase, the state of the social contract, with ‘civil liberty, limited by the common will’, a kind of paradise on earth. The social contract was a rupture with the monarch’s rule. The new society of the third phase required a new man/woman, who can undo his alienation and merge in community with others. In the social contract, individual and general will correspond to each other. Individual and general happiness coincide, and with a form of state religion, philosophy and religion also merge. By entering into the contract, according to Rousseau and Kant, man/woman gives up his ‘wild’ freedom, but gets ‘real’ freedom in return. Through virtue man can share happiness. Indulging in passions yields bad short-lived happiness. Man felt in himself a struggle between nature and society and a struggle between passion and reason. There was a connection between self-control and political social control.
For Rousseau, happiness and justice lay in each other’s desire. Justice would come with the Last Judgment by God. Rousseau already hoped for justice on earth during the final political community. In that final phase, man/woman cannot do without religion. His political religion maintained an absoluteization of the political domain, a concept of freedom consisting of the realization of a collective goal (normative view of man/woman), the exclusion of the unwilling in relation to the assumed course of history and a fixed idea about the final stage of history. that will bring justice. With this he can be seen as a pioneer of the revolution. He foresaw all sorts of upheavals. In Emile he says: ‘defy current social relations; a state of crisis and an era of revolution is approaching us’, and ‘I do not believe that it is possible for the great monarchies of Europe to survive any longer’. And later: ‘I see all the states of Europe running towards their destruction.
Although only Rousseau includes property relations in the contract, these contract theories imply the abolition of (feudal) class society and an equal legal treatment for every citizen. Eleven years after Rousseau’s death, hundreds of revolters stormed the Bastille in 1789. The political freedoms proclaimed in the French Revolution were the legacy of these contact philosophers. Some (Furet) see a clear evolution from Rousseau via the terror of Robespierre to the totalitarian regimes of the twentieth century (terrorist Russia and communism, anarchism and syndicalism and fascism and national socialism), where individual freedom merged with the general will of a nation.
Rawls’ Social Contract
In the 20th century, Rawls developed a theory of justice, also involving the relations of property (A Theory of Justice, 1971). He opposed the utilitarian view, which was prevalent in the 19th century. Laws and institutions, no matter how efficiently and well organized they are, must be reformed or rejected if they are unjust. His theory is again based on the theoretical model of the social contract. The basic principle is that every person has an equal claim to a full basic package of rights and freedoms, which are compatible with the rights and freedoms of others and that the political government must guarantee. Rawls’s political philosophy is seen as the foundation of the Third Way (synthesis between market and state). Then people will take into account the possible interests of all. Rawls’s social contract theory recognizes the biological origin of our ethics. According to him, man/woman, possibly acquired through natural selection, has a rational sense of “fairness” that makes him strive for justice. Following Nussbaum, who drew up individual core capacities, collective core capacities would also be appropriate here.
He follows the same principles of the basic structure of a just society as in 17th and 18th century contract theories. How can a social and political order be legitimized in a society. Three steps are distinguished:
1. Initial situation
2. Procedure for reaching agreement on the content of the contract
3. Concrete implementation of the contract
The social contract thinkers assume a state of nature in which people are in conflict with each other. Rawls speaks of an ‘original position’, in which the Conflict is about the distribution of scarce goods. According to him, a theory of justice should deal with the problems of the rule of law and the welfare state. According to Rawls, justice stands for a normative assessment of social institutions, which structure the relations between citizens. How should the institutions that form the basic structure of a society be judged? Which procedures determine whether a basic structure is fair? These are: normativity and rationality (a kind of two-component glue). Conditions do apply:
1. Justice as fairness, people should be able to judge unbiased;
2. Choice must be rational.
Rawls recognizes that it is difficult to reconcile normativity and rationality. He thinks this is possible under the condition of the “veil of ignorance” (people who choose the principles for the basic structure of a just society, choose without seeing what social position they themselves will take).
People are guided by the maximin rule (Rawls): first list the worst alternatives, and then choose the best. According to Rawls, people will choose the following two principles of justice:
- every person has an equal right to the most extensive system of basic freedoms, insofar as it is compatible with the freedom of everyone else.
- Socio-economic inequalities are only allowed if a) unequal distribution of goods benefits the least advantaged, and b) all offices and social positions are open to everyone on the basis of equality of opportunity.
New Social Contract of Omtzigt
In the 20th and 21st centuries, it has proved difficult to integrate the ethical dynamics of the liberal constitutional state and socialism into practice on the basis of Rawls’ social contract. On the contrary, the neoliberal constitutional state in Western society has gained in power, while the countervailing power has virtually disappeared. This has led to a number of structural problems in the way in which our society is structured: large companies have become detached from national societies, social institutions have become loose from their core task, and politics and institutions have, often also due to their own failures, lost authority and power. The mechanisms of the rule of law no longer function properly. The democratic constitutional state has become increasingly vulnerable. The confidence of citizens in this form of government seems to be continuing to pulverize. Based on these observations and his own experiences in politics, Omtzigt (2021) argues for a new social contract. He proposes a number of blocks to help shape and build a new social contract together (Een nieuw sociaal contract, in Dutch). Omtzigt sees in the courageous attitude and practical, principled and scientific insights of Cleveringa (1895–1980), including his speech in 1940 against the dismissal of his Jewish colleagues, an example of someone who takes a principled position and spoke crystal clear about injustice and injustice. ‘Righteousness is the attitude by which one with a firm and permanent will, accords to each his rights’ (Thomas Aquinas). This can not only be based on laws, rules and procedures, but also requires a certain attitude from those involved, a stabilized and lasting will to do what is right, without calculation or self-interest (‘innerness’, Meister Eckhart). Fundamental changes do not come from the workings of the law, but from the spirit of the law. According to Omtzigt, the spirit of the law, of government, of society as a whole must change. Public justice is the basic norm for social and political life and is a core value of our modern constitutional state. The government has a lot of power, legitimized by the fact that the government is not there for itself, but for the citizens, in order to be able to meet the necessary, common needs. Thus, the power of government should only be used for the purpose of public law, and not for anything else. The basic principles of the rule of law are:
- rule of law;
- guaranteeing fundamental rights;
- separation of powers: power and counter-power, checks and balances (Montesquieu’s doctrine of three powers,: legislative, executive and judicial power).
According to Omtzigt, the balance of power (the essence of the trias politica) has been subject to serious erosion in recent years. Major problems have arisen with power and counter-power. The whole system of the trias politica has failed over time, as demonstrated by the report ‘unprecedented injustice’, a report by the Parliamentary Interrogation Committee on Childcare Allowance. Fundamentals of the rule of law have been violated and the mechanisms of the rule of law no longer functioned, putting pressure on the institutions. Omtzigt points to history that teaches us that the slumbering discontent in society can be dangerous and can lead to disorder, to resistance and even revolt, to revolution.
Fundamental changes are needed to restore trust between government and citizens and to work on mutually controlling institutions: a new social contract. According to Omtzigt, with this social contract we can prevent that government services completely run off the rails and ensure that there is legal protection for everyone. In this way there will be a serving government that is there for the citizens, and not the other way around. Let’s start today and let’s hope that we can change the mindset of government and citizens, rebuild the institutions by renewing checks and balances, and repair the fabric of the rule of law, and that this will be the legacy of Omtzigt’s social contract, and that it doesn’t require a revolution! Omtzigt makes 10 proposals:
1. The Constitution itself, a constitutional court. The Dutch court may not review Dutch laws against the fundamental rights of the Constitution (the part of the legal system in which the most important fundamental rights are established). The Dutch Constitution does not yet contain a provision on the right to a fair trial. Parliament cannot guarantee that human rights are respected in Dutch law, because coalition parties in parliament are often bound by coalition agreements. For assessment against Dutch fundamental rights, a Dutch citizen must go to the European Court of Human Rights. A Constitutional Court could offer a solution.
2. A real bond between voter and elected: renewal of the electoral system. The direct bond between voter and elected is being undermined as political debate is mainly conducted by a highly educated and knowledgeable elite, while an increasing number of people feel insufficiently heard and drift further and further away from politics. Moreover, the political elite in fact determine who enters the Chamber. This problem can be solved by establishing regional constituencies, in which the regional branches and voters are given a greater role in the selection of which candidate is elected, similar to the Parliamentary Electoral System in Denmark.
3. A parliament that takes its core tasks seriously. Due to the large comprehensive coalition agreements, which are concluded when the cabinet is formed, the parliament is in fact handing over power. Through this the making of good, sound legislation and the thorough and in-depth monitoring of the government get stuck. Moreover, it seems that members of the parliament are more active in appearing in the media than in the previously invisible processes of making good laws and controlling the government. The impact of European legislation is very large. The government is a co-legislator as a member of the Council of the European Union, but the parliament is only an indirect legislator. The European legislative process takes a relatively long time and parliament lacks time, knowledge and specialist support. Article-by-article treatment of laws, which in practice never happens, and discussing a bill in two readings, as happens in foreign parliaments, can improve the situation.
4. Better legal protection, especially in administrative law. The childcare allowance system in the Netherlands has become a scandal, which unfortunately stands not alone, according to Omtzigt. It’s not an incident. There is also an example in the repair of earthquake damage in the north of the Netherlands. I also mention here the Urgenda case, where the court enforced that the Dutch state adheres to the Climate Convention. The court also had to enforce that the government adheres to the WOB (Openness of Government Act), which stipulates that anyone can request information from the government, such as reports and minutes. These patterns are also recognizable in a number of files with the tax authorities and elsewhere. For example, in 2019 the national ombudsman and the children’s ombudsman found that self-reliant citizens also regularly get stuck with the government. The childcare allowance scandal started with the sudden suspension of childcare allowance for many parents by the tax authorities, without giving reasons. They all had to repay the childcare allowance they had received up to that point in one go. Parents who objected, sometimes did not receive an answer for two years. In the early years, the ICT system of the tax authorities was a mess. Many parents were labeled ‘fraudster’. Since 2005, the Court of Audit has issued very regular warnings about the problems. In 2019, the Court of Audit wrote a hard-hitting warning report about high recoveries, but the government did not reply to this high-ranking state board. A large group of parents who appealed to the court received an offer from the Tax Authorities just before the lawsuit took place, so that they withdrew their case. In a large number of cases in which the parents appealed, the Tax and Customs Administration submitted incomplete files to the court. The House of Representatives, as co-legislator, is jointly responsible for the unclear legislation and its supervision. The Administrative Jurisdiction Division of the Council of State also deliberately submitted incomplete files to the Tax Authorities, while the administrative judge must be independent and neutral with regard to both the government and the citizen. The government has fallen seriously short in the childcare allowance affair and resigned in 2021.
5. A professional and approachable civil service. Official civil services should be easily approachable. Nevertheless, there is a lot of uncertainty, partly as a result of poor legislation, rigid implementation, poorly legible texts or too many reorganisations. There are many examples of people getting lost in mazes where they don’t get to speak to anyone who can solve their problem. Measures are needed, top officials in the general administration rotate too much, abuses should be more easily exposed, through better protection of whistleblowers, according to a proposal from the Council of Europe.
6. Better external supervision and external investigations. Signals of problems must first of all be recognized, picked up and resolved within the government itself. In addition to internal supervision, external supervision is needed that does not fall under the responsibility of the same minister. Independence of supervisors must be established by law. Parliament must be able to hear the regulator without the minister’s permission. New enforceable rules must be introduced, so that, for example, the government can no longer determine the research question itself, when its own actions are subject of the investigation. A special tax ombudsman is needed.
7. A vibrant and independent civil society. In civil society, schools, hospitals, housing associations, sports associations, football clubs and even universities were established independently of the state in the Netherlands. These roots have disappeared and have been replaced by subsidy relationships with the government, which lead to dependence. These organizations should again become as many independent associations as possible, whose members are in charge and which in fact take over the position of the professional supervisors. Citizens can then offer real opposition. Organizations could consciously choose not to receive a subsidy anymore. Generous tax exemptions are then needed for charities, with supervision, such as by a charity board, as in the United Kingdom. A free independent press plays a special and crucial role in a democracy. This role is threatened because a large part of Dutch journalism is in foreign hands and subscriptions are declining. Subsidy is undesirable, because it then becomes dependent on the government, which it must control.
8. Taking constitutional tasks seriously: education, public housing, subsistence level. The Constitution also contains tasks that can be seen as core tasks and subjects of concern of the government: the livelihood of the population and the distribution of prosperity, promotion of sufficient housing and education. These three core tasks of government must become more central in politics. With regard to subsistence security, we must regularly clearly define what the social minimum is for different household compositions and then take that as a starting point. This constantly recalibrated social minimum is also the starting point for benefits and the payment of taxes. We should not do this based on models, but based on what people really need; see also point 9. Sufficient employment has not been adequattely promoted in recent years. Over 1 million homes are needed in the Netherlands in the next ten years. Performance of 15-year-olds in reading education has fallen sharply. In 2003, 11 percent of 15-year-olds were at risk for low literacy. In 2018 this had increased to 24%.
9. Fewer planning agencies, fewer models, more people, more think tanks. The way in which models and model outcomes determine Dutch policy is problematic. In the Netherlands, the models determine our policy, while the economic and social reality is extraordinarily complex. There are more Planning Agencies in the Netherlands than think tanks, where people think about complex reality. The Scientific Council for Government Policy employs fewer than 100 people. This is also out of balance with the more than 700 communication officers selling the policy. The fixation on model reality ensures that real reality gets further and further out of the picture. Model-oriented policy makes regulations unnecessarily complex and unclear. This is most evident in income policy and purchasing power charts. Purchasing power tags become a goal, not a means. Politicians look for tricks to show positive purchasing power pictures. For example, a tax reduction can be shown extensively, while that tax reduction can be designed in such a way that only a limited group of people is entitled to it, namely the standard households in the purchasing power charts. The models are a wholly incomplete and subjective summary of reality and the models can and do contain errors. It is therefore necessary that non-model-driven discussion takes place and not only when it comes to purchasing power, but also about other policies, such as the corona crisis, nitrogen and climate policy. The following is needed in the Netherlands: more think-tank capacity to understand and examine the system (tax system and the rule of law), fewer icommunication officers, only use open models and make room for discussion about the models and their outcomes, retrospective calculations by the General Court of Audit of the actual social costs of, for example, measures from the climate agreement, and determine definitions for this.
10. Openness about information and good information management. Information provision of the central government has been out of order for a long time, as a result of which wrong decisions have been made and citizens are not helped, but get stuck. On the one hand, hardly any reports are made of meetings where billions are decided at government level, and on the other hand, there is a crazy bureaucracy at the base of, for example, home care and primary schools: the world is turned upside down
Omtzigt’s social contract is necessary, but not sufficient
In the 20th and 21st centuries, it has proved difficult to integrate the ethical dynamics of the liberal constitutional state and socialism into practice. On the contrary, the neoliberal constitutional state in Western societiy has gained in power, while the countervailing power has virtually disappeared. Omtzigt’s social contract is aimed at the relationship between citizens and government, and in particular to restore trust between citizens and government: a new social contract. Jan Dirk Snel summarizes these in 3 categories: core tasks of the state, implementation and control, and citizenship. These are all necessary conditions to ensure that the state is no longer a means in the service of private interests, but, as Kant puts it: ‘Zweck an sich selbst’. But, and that is my opinion, they are not sufficient conditions to restrict the power of the neoliberal rule of law. Governments, multinationals and international banks are keeping each other in check and it is in their interest to continue the neoliberal system. In an earlier blog, I’ve referred to this as the COMBI complex (2local.io/blog/get-started-yourself). Reducing this power is only possible if the citizens gain more power and the government, the multinationals and the international banks lose their power. Citizens will have to fight for that themselves. The 2local platform can be helpful for this.
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June 30, 2021