The constitution as a social contract

By its definition and philosophy, a constitution is a social contract. As a contract, its parties are all the elements that make up the whole we call society. It also spontaneously reflects the will of these elements to live together. However, despite very good constitutional texts, it is seen that the elements making up society experience serious problems in living together. Moreover, these problems go far beyond a simple dispute over the articles of the contract, and can sometimes be experienced alongside attitudes that do not recognize the text of this contract at all.

This situation inevitably necessitates questioning whether the constitution is a social contract. Because the objections do not arise from the violation, at some stage, of the articles of a contract people had signed earlier, on the grounds that it no longer suits them. The problem is that constitutions have not, from the very beginning, come into being in accordance with the definition of a "social contract." Is it possible to expect more from constitutions that are nothing more than texts which, after each coup, an armed force wrote as it saw fit and made the whole of society sign at gunpoint?

It may be said that in the age of nation-states, all constitutions are in any case texts that states, as a power holding the monopoly on the use of violence, impose on their peoples. In which of them was a constitution first agreed upon and the state then established?

Indeed, the historical relationship between state and law or between violence and constitutions is far from being usable as a reference today for a constitutional democratic society. Today no one can look at these historical examples and put forward as a precondition for a constitution first of all the constituent will of an armed force. Democracy has today acquired its own sociological foundations, and for a social contract there has been a serious shift of axis from an armed force toward social forces. Today it can now be stressed that basing a constitution on the constituent will of an armed force is a full-fledged crime against humanity, and from now on serious distance is being covered toward closing this path forever for making constitutions.

Constitutions imposed by force of arms cannot have the quality of being a social contract; therefore, even if, relying on the power it trusts, such a constitution seems to have temporarily solved all problems and made all the allocations, the developing forces of society sooner or later seek and find their own balance and produce a text in which the participating elements can find themselves. Meanwhile, it is quite in the nature of things for the elements unjustly favored in the previous texts to be content with the situation and to resist a new and normal constitutional process, but of course it is not at all justified.

In a new constitution, more in keeping with the nature of the matter, the ideal is for all elements to reach a common text through cool-headed negotiations over the articles of the contract. However, since society can never be founded from a zero point and always has a political distribution with certain differences of advantage, one should not expect the formation of such a ground of consensus.

Even so, it is being said that the constitutional amendment package, most of which no sensible person can object to today, should be rejected simply because it is being made by the AK Parti alone. It is being said that the party in power cannot make a constitution for one reason or another. Yet those who say this do not hold back from saying that when they themselves come to power they will make perhaps the same, or even more, of the constitutional changes now on the agenda. This in reality shows an incurable ailment of our constitution, that is, social contract, practice. When everyone thinks that, in making the constitution, only they will be the determiner, even the sole determiner, even the sole determiner by excluding the other, the question "To make a constitution, let alone a maximum, who will make a minimum consensus with whom?" presents itself,

Constitution-writing is a negotiation and contract process that must take place with the participation of everyone as far as possible. In this process, no one has either the right or the luxury of excluding anyone. Saying "I will not make a constitution with this or that segment" means you harbor an enmity that amounts to annihilating those people at the first opportunity. It means you intend neither to live together with these segments nor to do politics with them. On closer examination, this attitude also carries a hidden intention of "genocide."

Yet once a constitution as a contract is achieved, the text that emerges will be a text whose results bind everyone. In particular, the referendum process and the text-writing stage preceding it are an operation to which everyone is invited and which is open to everyone's contribution. Those who, though invited to this work and though the channels of participation were open to the very end, did not participate have no right to play spoilsport in the end. What those who, for one reason or another, refuse to take part in the contract process ultimately seek remains outside politics. The more they stay outside politics, the more they lose the reasonable, and what they say amounts to dry noise bearing no relation to the context.