Rotten Social Background

“Justice is tolerated not as a good, but as the lesser evil, and honoured by reason of the inability of men to do injustice. For no man who is worthy to be called a man would ever submit to such an agreement if he were able to resist; he would be mad if he did. Such is the received account, Socrates, of the nature and origin of justice.” (The Republic, Book II)

Above are the early building blocks of social contract theory. Social contract theory has been a staple for democracies since the fall of rome. It is an attempt to answer the questions of why and how personal freedoms interact with societal constraints. This theory is often attributed to Thomas Hobbes and his novel Leviathan in western society. For many Hobbes’ dialogue on the issue is the first exposure to the framework.

Hobbes argues that early life for man was brutish and hard with little to be desired and very short life spans. At some point early (wo)man would have gathered and made pacts and treaties ceeding some of their rights in exchange for others ceeding some rights as well. This then invests sovereignty in a ‘state’. Before individuals possess sovereignty. This state is then entrusted with the rights and responsibilities of rule. Hobbes argues that this was necessary for humanity to move beyond a war of all against all. However he notes that there is no forced state of order on the ‘state’ and as such governments often find themselves in a state of chaos similar to that of pre-social contract people.

Before we delve deeper it is notable to mention John Locke. He believed that the primary purpose of the state was to protect. In order to achieve this he deemed it necessary to achieve this by granting the state a monopoly of violence, where the government, as an impartial judge, may use the collective force of the populace to administer and enforce the law, rather than each man acting as his own judge, jury, and executioner—the condition in the state of nature. This is among the core principles of American Jurisprudence. This is what gives the Judge a right to sentence anyone.

The Judge has no right to sentence...

Well not anyone. Apparently a subset of society might be getting an incredibly unfair shake when it comes to the philosophical underpinnings of our society. The legal theory of Rotten Social Background, though recognized as a criminal defense in any US Jurisdictions, may offer some insight into the moral failures of our system.

It is undisputed that a person's environment plays a significant role in shaping a person's values and behavior. Whether the environmental stimuli is Lead in the drinking water, which leads to disease and temperament issues, or poverty and over-policing. Each has a lasting and often cumulative effect on an individual's life. It should then come as no surprise that our prisons are filled overwhelmingly with our poorest citizens.

Rotten Social Background theory states that unless society is prepared to make the argument that offenders are poor because they are criminal in nature, then we must recognize poverty as a determinant for criminal behavior.

In doing so the theory begs the question, to what degree is an individual culpable when the terms of their social contract have been deeply violated. The theory argues for an individual left out of society - set apart financially, socially, or environmentally - there may be no fundamental basis for holding that individual to account.

This theory was in its formative years before the private prison boom under Clinton. It is a helpful framework for examining the rights of the state to impose upon the individual. I believe it is necessary for a state to act on the individual. However, in so many ways social contracts are violated in order to protect the rights of some. If the state was to suddenly start to honor their end of the social contract, mitigating socio economic deprivation would be a good place to start.