Carte Blanche: The Phony Social Contract

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Nearly everyone that has defended liberty for a certain period of time has been confronted with the idea of the so-called social contract. We reason that individuals do not consent to the coercive nature of government, and it is therefore illegitimate. But they tell us this is not true, and that individuals really do consent to actions by the state implicitly through a social contract between individuals and government. In this way, the fact of government coercion can be explained away and made to sound like voluntary action by individuals. Even if we state that we do not consent to taxation, government-controlled industries, the welfare state, the NSA, and much more, we really do through the social contract, and our elected representatives conduct the “will of the people”. This force cannot be violent because we consent to the social contract and anything the state does, we are essentially doing to ourselves! One of the most consistent principles of social contract rhetoric is that every time a statist uses it in a debate, they act as if we have never heard it before.

Today, social contract theory can be used to justify any action by the state. Self-government has become a popular concept to Americans, with the idea that democracy is supreme to all other decision making. Catchphrases like “by the people and for the people” fuel the idea that “we” are the government and the government is everything. Although this sounds untyrannical at face value, it masks coercion and the use of force by the state under the veil of the “social contract”. As Murray Rothbard explains in Anatomy of the State, “If  ‘we are the government’, then anything a government does to an individual is not only just and untyrannical but also “voluntary” on the part of the individual concerned... if the government conscripts a man, or throws him into jail for dissident opinion, then he is ‘doing it to himself’ and, therefore, nothing untoward has occurred”.

Original social contract theories, as contractual obligations between citizens and the state, originated from Thomas Hobbes and John Locke. The original theory distinguishes explicit consent from implicit and argues that the social contract of individuals submitting authority to the government must be through implicit, or tacit consent. Locke justified this contract with the idea that there is no other way to live in society. However, the reality of a functioning voluntarist society is beside the question of whether or not the social contract is valid in the way it is described today. Michael Huemer, in his book, The Problem of Political Authority, makes a clear distinction between explicit and implicit consent, as well as four legitimate forms of implicit consent and four rules for valid agreements. We will examine these principles to determine if the theory of the social contract indeed makes government consensual as we know it.

In today’s political rhetoric, explicit social contract theory is generally not invoked. For this to be a reality, every citizen would have had to voluntarily agree to a contract with the government in order to make its actions consensual. This is why it has been discounted here. Social contract theory today is defended with the idea that implicit consent makes it valid. Without explicitly stating agreement, individuals can indicate consent through actions. This type of agreement forms perfectly valid indications of consent in many cases. For this reason, Huemer explains the four possible forms of implicit consent.

The first form of implicit consent is passive consent. This situation describes valid agreement by the failure to express dissent when given the opportunity. Huemer describes passive consent in the context of a board meeting, where the chairman says, “Next week’s meeting will be moved to Tuesday at 10 o’clock. Any objections?” In this context, if no member objects, then they have passively consented the time change of the meeting.

The second form of implicit consent Huemer explains is consent through acceptance of benefits. In many cases, demands are known in society to be attached to benefits that can be voluntarily taken. For this example, the author uses that of a restaurant where the customer consents to pay for the meal by initially accepting it. The individual is agreeing implicitly and voluntarily by entering the restaurant's private property and accepting the benefits when it is known that they are attached to a price. Consent through presence is the third form, where it is indicated that an individual agrees to certain terms by remaining in a specific location. This is the reason individuals must follow the rules set by the owner of private property when voluntarily remaining on it. Essentially, consent through presence is the property right to declare the rules over one’s property, and anyone that remains implicitly consents to these rules.

Lastly, Huemer describes consent through participation, which is similar to consent through acceptance of benefits. If it is declared that anyone participating in an event must give up a particular thing in the future, they voluntarily consent to give this thing up through their participation. In the example of a poker game, players implicitly agree to give up their money to the winner in the event that they lose by participating in the game.  

Huemer logically deducts the only possible ways that implicit consent can be valid. To contrast, the clear and concise forms of implicit consent, justifications for the existence of the social contract with government are made in many different ways. We can categorize and make sense of them within the valid forms of implicit consent.

Passive consent is probably thought of the least when defending the social contract. It is a much more common opinion that silence does not indicate consent when it comes to issues of individual liberty. It is also commonly understood that the boardroom meeting example is different than government in the context of the rules of a board meeting and the voluntary association of its members. We also know that many individuals dissent from the actions of government, so defending the idea of implicit consent of the social contract through supposed failure to object holds no ground. As a whole, nobody thinks taxation is not theft because individuals are failing to dissent from an agreement.

A much more popular notion is that “we use the roads”, therefore invoking consent through acceptance of benefits. There are basically two ways of asserting this argument: for benefits, we cannot refuse and benefits we theoretically can refuse. For the first scenario, it is sometimes asserted that taxation becomes consensual because of accepted benefits, even when we have no realistic way of refusing them. An example is military protection, where it is believed that since individuals enjoy the protection they automatically consent to coercion. The second scenario holds much more weight in the case of benefits that citizens can hypothetically refuse. In theory, individuals can reject government roads, schools, or certain forms of welfare, and because of this, proponents of the social contract reason that to voluntarily accept these benefits is to tacitly consent to the rules and requirements of the state.

By far the most common statist retort uses consent through presence. “False”, they tell us, “Taxation is not theft because nobody is forced to live here!” It is hard to describe how often this is asserted, that if individuals “choose” to live in society they consent to the government by the act of not leaving. Essentially, the recognition of setting rules for one’s private property where guests implicitly agree is thought to extend to the territory in which the state claims. So long as people are allowed to move in and out of the country freely, the state’s role in the contract can contain whatever it wants. In this sense, taxation is not theft because it is thought of as rent. Rent is consensual because we voluntarily chose to live on the property for a given price.  

Lastly, and less common, it can be reasoned that citizens consent to the social contract through participating in government activities, like elections. Not only do citizens have the right to voice their dissent and consent of politicians, but by participating in the given process, they show support of the social contract.

The ways in which various forms of implicit consent are used to defend the social contract present intimidating arguments that can be packed into a single phrase and used repeatedly to shout down dissent from government. Although forms of implicit consent can form perfectly valid agreements, certain conditions can render them invalid. To judge the reasoning, Huemer also explains four rules for valid agreements. After explaining these rules, we will see if the arguments for implicit consent in the social contract constitute valid agreements.

The first rule is that valid consent requires a reasonable way of opting out. As Huemer explains, the only way of dissenting from a contract cannot require an individual to give up something to which he has a right. He explains, “Rather, it is a matter of who has rights over the good that dissenters are asked to give up. Those who seek your agreement to some proposal may not demand that you give up any of your rights as the cost of rejecting their proposal. I may demand that you give up the use of my property if you do not accept some proposal of mine, but I may not demand that you give up the use of your property”. Also revisited is the boardroom example, where hypothetically, the chairman states that members can dissent to the meeting time change by cutting off their right arm. Nobody dissents and the meeting is changed, but this does not indicate implicit consent. Individuals have a natural right to own property, and they cannot be obligated to give it up in order to dissent from another individuals agreement.

The second rule is that all explicit consent trumps alleged implicit consent. This rule is more understood and straightforward than the last. Explicit dissent may be unreasonable in certain agreements, however, one cannot keep arguing that one consents implicitly when they are avidly dissenting explicitly.

Third, an action can be taken as an indication of agreement only if one can be assumed to believe that if one did not take that action, the particular thing would not be imposed. If an individual is asked to agree to a contract but told that it will be imposed whether they agree or not, implicit consent is not possible in any form. Huemer describes this situation where the board meeting chairman asks if there are any objections to the meeting time change but says, “But regardless of any objections, the time change is happening”.

The last rule is that those valid agreements are mutual and conditional. If one party of a contract can violate their obligations at any time, the contract is not valid.

Now we revisit the possible forms of implicit consent and the ways the social contract is justified, to judge if they constitute valid agreements.

The fact that valid consent must offer a reasonable way of opting out invalidate much of the social contract claims. The ways in which individuals participate in government activities and accept benefits cannot indicate implicit consent because there is not a reasonable way of opting out where they are not forced to give up things to which they have a right. If individuals accept benefits or participate in order to not give up certain things, they are doing so defensively. This is certainly true for so-called benefits where the state forces a monopoly on a particular industry like roads. Given that this forces the individual to use the “benefits” in order to live a functional life in society, he uses them whether he genuinely consents to the state or not. Secondly, the defensive act of voting does not indicate consent through participation, because there is no reasonable way of opting out. Therefore, casting a vote for a marginally better candidate is a defensive act.

If the government takes a certain amount of money and leaves benefits that the individual cannot refuse, it does not make the action consensual. This would leave fleeing the country to be the only way of showing dissent. For being a common retort to libertarianism, this is one of the most psychotic arguments in favor of the social contract. They try to make it sound like a perfectly reasonable way to dissent from an agreement: Simply leave your home, property, family, friends, and career and find a new country to live in! If you are not in a financial position to leave, simply show dissent by committing suicide. It’s amazing that libertarians do not understand this! On the contrary, the only way to dissent cannot force an individual to give up something to which they have a right. The idea that individuals must adhere to an agreement or give up their life, liberty, or property is anti-social and violent. Clearly, the fact that people choose to live within the borders of a government does not mean they implicitly consent to a social contract. The notion that it does indicate consent entertains this bizarre fallacy that the state has a property right to all land within its borders. On the contrary, it establishes a monopoly on violence within its borders for itself, but does not own the land, and therefore cannot charge rent. The right to own property is a natural right that preexisted government.

The previous reasoning is less necessary in exploring the existence of the social contract when we understand that explicit consent trumps alleged implicit consent. Even if we concede that by accepting government benefits, voting, or living within a country, individuals did validly consent to the social contract, would the explicit dissent of some invalidate the contract for themselves? We know that many citizens oppose forms of taxation and other actions by government, and they do so explicitly. Does this social contract with government allow them to withdraw from the terms and conditions if they explicitly dissent? If these individuals did implicitly consent by presence or actions (which is also an invalid agreement), their explicit dissent towards the social contract trumps the alleged implicit consent.

The fourth rule Huemer explains of a valid contract is that both parties must have a contractual obligation to the agreement. In the case of the so-called agreement in discussion, individuals are forced to pay taxes and follow the rules of government, however, the government has absolutely no obligation to uphold the benefits it promises in return. Huemer cites and explains multiple Supreme Court rulings that uphold exactly this notion. In Warren v. District of Columbia, the court explained that the benefit of police protection was not guaranteed to individuals, but rather to “society at large”. Even if implicit consent was valid for the past three arguments, it would then be invalidated on this ground.

Finally, following this chain of reasoning, if all the previous defenses of a social contract presented valid agreements, which they do not, an action can be taken as an indication of agreement only if it can be assumed to believe that if one did not take that action the particular thing would not be imposed. None of the possible actions individuals can take, with the exception of fleeing the country, can be reasoned to indicate consent in this case because the burdens of the state will be imposed regardless. Implicit consent is to show agreement through actions, but if none of the possible actions will change anything, why are the actions of individuals relevant? The voluntary decision of whether or not to vote or use roads is meaningless if the contract will still be imposed if the individual chooses not to participate in those things.

If confronted with the reality of the so-called social contract, it is common to hear the defense that democratic elections somehow make the contract voluntary. In other words, taxation is not theft “because my elected representatives wisely decided them”. This is a fallacy because a system of democratic elections is the imposed social contract that the individual did not consent to in the first place. If individuals are coerced into an agreement, the fact that they were forced does not change if the contract contains certain decision making through a system of democratic majorities. If the democratic majority decides a condition to which the individual does not consent, it is still every bit as coercive.

The purpose of this explanation of social contract arguments and philosophy is not meant to explain how a stateless society can function. It is not to explain how society would appear without taxation or government-owned roads, nor is it a normative defense of anarcho-capitalism. A “who would build the roads” response to the reality of the social contract is another discussion for another time. Statists often form government-apologist arguments defending a made-up social contract between individuals and government and use it to write off and avoid the fact that the state is inherently coercive and violent. Clearly, their common arguments are explanations for pre-existing conclusions and not facts determined by deductive reasoning. The purpose of this explanation is to show how the social contract is completely and thoroughly invalid and constitutes neither explicit nor implicit consent. For a concluding statement, taxation is theft.