The social contract theory… holds that… there is a contractual relationship between the government and its citizens. The contract requires the government to provide certain services for the population, notably protection from private criminals and hostile foreign governments. In return, citizens agree to pay their taxes and obey the laws.
At first glance the theory exhibits an impudent disregard for reality: no one has ever been presented with a contract describing how the government operates and asked for a signature.
But even if there was an original social contract, how could this contract bind people born much later, who never participated in the original agreement and were never asked for their consent?
David Hume painted the more realistic picture of human history, when he observed that nearly all governments are founded on usurpation or conquest… In the case of the United States and its government, for instance, the history is one of conquest.
Explicit consent is consent that one indicates by stating, either verbally or in writing, that one consents. By contrast, implicit consent is consent that one indicates through one’s conduct, without actually stating one’s agreement.
How can one indicate agreement without stating agreement? In some situations, one expresses agreement to a proposal simply by refraining from opposing it. I call this ‘passive consent’.
In other cases, one commits oneself to accepting certain demands by soliciting or voluntarily accepting benefits to which those demands are known to be attached. I call this ‘consent through acceptance of benefits’. For example, suppose you enter a restaurant and order a nice, tasty veggie wrap. After you eat the wrap, the waitress brings the check. ‘What’s this?’ you say. ‘I never said I was going to pay for any of this. If you wanted payment, you should have said so at the start. I’m sorry, but I don’t owe you anything.’ In this case, the restaurant could plausibly argue that, by ordering the food, you implicitly indicated agreement with the usual demand connected with the provision of that food: namely, payment of the price mentioned on the menu.
A third form of implicit consent is what I call ‘consent through presence’, whereby one indicates agreement to a proposal merely by remaining in some location. While having a party at my house, I announce, loudly and clearly to everyone present, that anyone who wants to stay at my party must agree to help clean up afterwards. After hearing my announcement, you carry on partying. In so doing, you imply that you agree to help clean up at the end.
Finally, sometimes one implicitly consents to the rules governing a practice by voluntarily participating in the practice. I call this ‘consent through participation’.
Each of these four kinds of implicit consent… might be used as a model for citizens’ implicit acceptance of the social contract. To begin with, perhaps citizens typically consent to the social contract merely by refraining from objecting to it (passive consent)… Consent through acceptance of benefits would also confer a nearly universal authority. Nearly everyone has accepted at least some benefits from the government… Consider next the case of consent through presence… The government does not require anyone (other than prisoners) to remain in the country, and it is well known that those who live within a given country are expected to obey the laws and pay taxes… Lastly, some citizens might give implicit consent through participation in the political system. If one votes in elections, it might be inferred that one accepts the political system in which one is participating.
A valid agreement is an agreement that is morally efficacious — that is, it succeeds in rendering permissible some action to which one consents or in generating an obligation to act in a way that one has agreed to act… For instance, suppose a criminal holds a gun to your head and demands that you sign over the movie rights to your latest book. If you sign, the contract would be invalid, because the threat of violence made it nonvoluntary.
Valid consent requires a reasonable way of opting out… Consider… ‘Next week’s meeting will be moved to Tuesday at ten o’clock. Those who object will kindly signal this by cutting off their left arms.’ The chairman pauses. No arms come off. ‘Good, it’s agreed!’ he declares. This is not a valid agreement, because the demand that board members give up their left arms as the price of dissenting from the schedule change is unreasonable. On the other hand, in the party example… the demand that you leave my party if you do not agree to help clean up is reasonable, because I have the right to determine who may attend my parties… The important difference… is not simply that losing your left arm is much worse than being expelled from a party. The chairman would not be justified even in demanding that board members pay one dollar… Rather, it is a matter of who has rights over the good that dissenters are asked to give up.
Explicit dissent trumps alleged implicit consent. A valid implicit agreement does not exist if one explicitly states that one does not agree… Suppose that, after being seated [in the restaurant example], you tell the waitress, ‘I will not pay for any food that you bring me. But I would like you to give me a veggie wrap anyway.’ If the waitress then brings you the wrap, you are not obligated to pay for it… What about the party example?… Suppose that after my announcement, you reply, ‘I do not agree’. I then ask you to leave, but you refuse… it is plausible that you are obligated to help clean up — not because you agreed to do so, but because I have the right to set conditions on the use of my house… This derives not from an agreement but from my property right over the house.
An action can be taken as indicating agreement to some scheme, only if one can be assumed to believe that, if one did not take that action, the scheme would not be imposed on me. Suppose that in the board meeting example, the chairman announces, ‘Next week’s meeting will be moved to Tuesday at ten o’clock, and I don’t care what any of you have to say about it — the schedule change will happen whether you object to it or not. Now, does anyone want to object?’… Though the board members were given a chance to object, they were also given to understand that if they objected, the schedule change would be imposed anyway. Their failure to express objections therefore cannot be taken to indicate agreement. It may simply indicate that they did not wish to waste their breath protesting something about which they had no choice.
Contractual obligation is mutual and conditional… Suppose that you order food in a restaurant… If the waitress never brings the food, then you need not pay them; their failure to live up to their end of the deal releases you from the obligation to live up to yours.
What are the available means of opting out of the social contract? There is only one: one must vacate the territory controlled by the state.
Let us review some of the reasons one might have for failing to exercise this option. To leave one’s country, one must generally secure the permission of some other state to enter its territory, and most states impose restrictions on immigration. In addition, some individuals lack the financial resources to move to the country of their choice. Those who can move may fail to do so due to attachments to family, friends, and home. Finally, if one moves to another country, one will merely become subject to another government. What should one do if one does not wish to consent to any government? Those seeking to avoid all government jurisdiction have three options: they may live in the ocean, move to Antarctica, or commit suicide.
In light of this, is the option of leaving the territory controlled by the state a reasonable way of opting out of the social contract? Some find it unreasonable because the demand is too onerous. In the words of David Hume,
We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her.
Here is one answer: perhaps the state owns all the territory over which it claims jurisdiction. Thus, as I may expel people from my house if they do not agree to clean up at the end of the party, the state may expel people from its territory if they do not agree to obey the laws and pay taxes.
For illustration, consider the case of the United States. In this case, the state’s control over ‘its’ territory derives from (1) the earlier expropriation of that land by European colonists from the people who originally occupied it… This does not seem to give rise to a legitimate property right on the part of the U.S. government… Might does not make right; the mere fact that the state exercises power over the people in a certain region does not give the state a property right (nor any other kind of right) in all the land within that region.
Let us turn to the second condition: you have not implicitly accepted a contract if you explicitly state that you do not accept it. In the case of the social contract, a small number of people have explicitly indicated their disagreement. These are the political anarchists, people who hold that there should be no government. Yet every government continues to impose laws and taxes on anarchists. However vociferously you protest against the social contract, the government will not refund your tax money nor exempt you from the laws.
The third principle… Almost everyone knows that the state will still impose the same laws and the same taxes on everyone, regardless of whether one objects to the government, accepts government services, or participates in the political process. Therefore, one’s failure to object, one’s acceptance of government services, and even one’s participation in the political process cannot be taken to imply agreement to the social contract.
Finally, we come to the fourth principle concerning valid agreements: a contract imposes mutual obligations on the parties, with each party’s obligation conditional on the other party’s acceptance of its obligation… Given the wide and indefinite range of laws that might be created by the state and the range of punishments to which one might be subjected for violating them, an individual’s concessions to the state under the social contract are quite large.
The state, in turn, is supposed to assume an obligation to the citizen, to enforce the citizen’s rights, including protecting the citizen from criminals and hostile foreign governments. Does the state ever fail in this duty? What happens when it does?
In one sense, the state fails all the time. In any large society, thousands or millions of citizens are victimized each year by crimes that the state failed to prevent. But it would be unreasonable to expect the state to prevent all crimes. Perhaps the social contract only requires the state to make a reasonable effort to prevent crimes. But what if the state fails to do even that? Suppose you are a victim of a serious crime that the government could easily have prevented, at little cost, had it made a reasonable effort to do so. Would the state then have failed in its obligations under the social contract? If the social contract means anything, then the answer to that question must be yes.
In the United States, that situation has occurred many times. I describe one such instance below… On a morning in March 1975, two men broke into a town house in Washington, DC, where three women resided. The two women upstairs heard the break-in and heard their roommate’s screams coming from downstairs. They telephoned the police and were told that help was on the way. The two women crawled out of a window onto an adjoining roof and waited. They observed a police car drive by and then leave. Another officer had knocked on the front door but, receiving no answer and seeing no signs of forced entry, decided to leave. The police did not check the back entrance to the house, where the criminals had actually broken in. Going back inside, the women upstairs again heard their roommate screaming, and they again telephoned the police. They were assured that help was on the way, but in fact no officers were ever dispatched to respond to the second call. When their roommate’s screams stopped, the two women upstairs thought the police had arrived. They called down to their roommate, which served only to alert the criminals to their presence. The two criminals then kidnapped the three women and took them back to one of the criminal’s apartments, where they beat, robbed, and raped the women over the course of fourteen hours.
What is notable about this case is not just that the state failed tragically in its obligation to protect some of its citizens. More important for the social contract theory is what happened afterwards. The women sued the District of Columbia in federal court, for the government’s negligent failure to protect them. If the government had a contractual obligation to make a reasonable effort to protect its citizens, then the women should have had a clear-cut case. In fact, the judges dismissed the case without a trial. The plaintiffs appealed, but the dismissal was upheld.
Why? No one disputed the government’s negligence, and no one disputed that the women had suffered great harm as a direct result of that negligence. What the court denied was that the government had any duty to provide protection to the three women in the first place. The Appeals Court cited ‘the fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen’. The government’s duty, the court explained, was only a duty to the public at large, to provide a general deterrent to crime. The court worried that the recognition of a duty to protect individuals ‘would effectively bring the business of government to a speedy halt’ and ‘dispatch a new generation of litigants to the courthouse over grievances real and imagined’.
This was not an idiosyncratic decision. In another case, a women telephoned the police because her estranged husband had just called her and told her that he was coming over to murder her. The police told her to call back when he arrived. When he arrived, the woman was unable to call back because her husband carried out his threat. In a third case, the Department of Social Services was monitoring a man for abuse, but the child was left in his father’s custody. Eventually, the man beat his son so severely that the child suffered permanent brain damage. These cases, too, resulted in lawsuits against the government, and these suits, too, were summarily dismissed. The child abuse case was appealed to the U.S. Supreme Court, which upheld the dismissal. Again, the courts held that the government owed no duty to protect the citizens in these cases.
My claim in this section has not been that most people would not agree to have a government. My claim is that there is in fact no valid agreement. Perhaps you would have accepted the social contract if you had been given a choice. But you were not. This makes your relationship with the government a nonvoluntary, noncontractual one, regardless of whether you are actually happy with the relationship. Nor do I claim that all nonvoluntary relationships are morally illegitimate or unjust. The point is simply that the social contract theory is false, because it depicts a nonvoluntary relationship as voluntary.
The central moral premise of the traditional social contract theory is commendable: human interaction should be carried out, as far as possible, on a voluntary basis. But the central factual premise flies in the face of reality: whatever else may be said about it, subjection to government is obviously not voluntary. In modern times every human being is born under this subjection and has no practical means of escaping it.
[…] You have gone out for drinks with some colleagues and students, and one of the students has proposed that you pay for everybody’s drinks. Over your protests, the other parties at the table vote to have you pay for the drinks. You tell them that you will not agree to do so. They then inform you that, if you do not pay, they intend to punish you by locking you in a room for some time and that they are prepared to take you by force.
Relatively speaking, democracy is admirable. In large and obvious ways, it is superior to all other known forms of government. But it does not solve the problem of political authority. The fact that a majority of persons favor some rule does not justify imposing that rule by force on those who do not agree to it nor coercively punishing those who disobey the rule. To do so is, typically, to disrespect the dissenters and treat them as inferiors. Matters are not altered if one adds that the majority deliberated in a special way before deciding to impose the rule.
[…] All social systems are imperfect. In every society, people sometimes suffer from crime and injustice. In an anarchist society, this would remain true. The test of anarchism as a political ideal is whether it can reduce the quantity of injustice suffered relative to the best alternative system, which I take to be representative democracy. I have argued that a particular sort of anarchist system, one that employs a free market for the provision of security, holds the promise of a safer, more efficient, and more just society.
The radical nature of this proposal usually calls forth strong resistance: it is said that justice should not be for sale; that the agencies will be at constant war with one another; that they will serve criminals instead of their victims; that they will serve only the rich; that they won’t be able to protect us as well as the government; that they will turn into extortion agencies; that a monopoly or cartel will evolve to exploit the customers. These objections fairly flood forth when students, professors, and educated laypeople are first introduced to the idea of nonstate protective services. But if we examine the proposal more carefully and at greater length, we see that none of these objections are well founded. Anarchists have well-reasoned accounts, grounded in economic theory and realistic premises about human psychology, of how an anarchist society would avoid each of the disasters that critics fear.
Most of the objections raised against anarchy in fact apply more clearly and forcefully to government. This fact is often overlooked because, when confronted with radical ideas, we tend to look only for objections to the new ideas rather than for objections to the status quo. For example, the most common objection to anarchism, the objection that protection agencies would go to war with one another, overlooks both the extreme costliness of combat and the strong opposition that most people feel to murdering other people. The very real threat of war between governments appears a much more serious concern than conflict between private security agencies.
Similarly, the common objection that the security industry will be monopolized lacks foundation. Once we abandon the notion of security agencies doing battle with one another, economic features of the industry, particularly the minimal fixed costs for a security company, should lead us to predict a great number of small firms rather than a single enormous firm. On the other hand, a governmental system is monopolistic by definition and should therefore be expected to suffer from the usual problems of monopolies.
The central advantages of the free market anarchist system over a governmental system are twofold: first, the anarchist system rests on voluntary cooperation and is therefore more just than a system that relies on coercion. Second, the anarchist system incorporates meaningful competition among providers of security, leading to higher quality and lower costs. As a result of these features of the system, individuals living in a free market anarchy could expect to enjoy greater freedom and greater security at a lower cost than those subject to the traditional system of coercive monopolization of the security industry.
[…] This book is an effort to help push society along towards the needed skepticism of authority. It may seem that my position is extreme — as of course it is, relative to the current spectrum of opinion. But current mainstream attitudes are also extreme, relative to the spectrum of opinion of earlier centuries. The average citizen of a modern democracy, if transported back in time 500 years, would be the most wild-eyed, radical liberal on the planet — endorsing an undreamt-of-equality for both sexes and all races; free expression for the most heinous of heretics, infidels, and atheists; a complete abolition of numerous standard forms of punishment; and a radical restructuring of all existing governments. By current standards, every government of 500 years ago was illegitimate.
If a man on seeing a little black were to say it is black, but on seeing a lot of black were to say it is white, it would be clear that such a man could not distinguish black and white… So those who recognize a small crime as such, but do not recognize the wickedness of the greatest crime of all… cannot distinguish right and wrong.
Chinese philosopher Mozi in the 5th century B.C.
If one individual travels to another country to kill people, coercively extracts money from members of his own society, forces others to work for him, or imposes harmful, unjust, or useless demands on others through threats of kidnapping and imprisonment, the governments of the world all condemn that individual. Yet these same governments do not shy away from undertaking the same activities on a national scale.
The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey, Dr. Michael Huemer, 2012, http://www.amazon.com/The-Problem-Political-Authority-Examination/dp/1137281650.