One of the most common attempts to morally justify the actions of a government is the Social Contract Theory. This theory says that governments (govt) are formed by the consensual agreement of originally free individual people. Before (or outside of) this agreement, each person was initially in a state of primitive nature where they held all their natural individual rights. At some point in time, however, they formed the govt through a sort of contract where they decided to give up certain individual rights and freedoms to the govt, and in exchange they delegated certain duties to the govt, such as protections, dispute resolution, and so forth. So, individual people start out as fully sovereign over themselves, but through the social contract some of this sovereignty is transferred to the state, the amount and kind depending on the terms agreed upon in this contract.
Some consider this contract as an explanation of the legitimacy of the state’s historical origins, whereas others also contend that this contract is continuously made and entered into by people’s consent today. Some may believe that the agreement actually literally took place in history through explicit consent, although this is not common. More sophisticated social contract theorists may say that the people give “hypothetical consent”, i.e. they would hypothetically give consent if they were presented with the option of entering into a contract to create a state, even if they were never literally given this option in real history. Other social contract theorists rely on the concept of “implicit consent”, where the people imply their consent by action or inaction, such as deciding to stay in a territory instead of moving out. Still others believe that voting demonstrates consent.
There’s a simple reason why so many people today turn to social contract theory to justify the actions and/or existence of the state. Most of the things that the state does would seem horribly immoral and evil according to our intuitions if the state was just some powerful gang that ruled only because it has the physical power to tell everyone what to do. So, instead, people try to come up with ways of rationalizing this use of power to make it morally palatable. A common attempt at this is to argue that we actually CONSENT to the govt’s actions. If we consent to the govt taking money from us (taxation) and controlling our daily behavior, even peaceful behavior, with force, then these actions would be morally permissible and we would have nothing to complain about. A common way to express consent is to enter into a contract, thus the “social contract”.
However, despite many people’s hopes that social contract theory justifies the state, it simply does not, mainly because these theories do not contain actual real consent. I will describe some basic common sense arguments that demonstrate that “social contracts”, of the kind described in these theories, do not represent real consent and therefore cannot provide justification for the state based on the theme of consent. I am not the first to make the arguments below. Many others have made the same arguments in similar ways, long ago and today. In particular, I think Michael Huemer does a fantastic job of using strict and eloquent logic to tear down traditional justification theories for the state’s actions.
I want to make clear that my arguments are not necessarily for the abolition of the state. The arguments against social contract theory do not alone dismiss the legitimacy or “moral rightness” of the state. The arguments below are narrowly aimed at demonstrating that govt authority cannot be morally justified on the basis of social contract theory. After I demonstrate this, it still MAY be possible to justify the state and/or its actions, but these would have to be justified using arguments other than social contract theory.
The biggest problem with social contract theory is that the social contract simply does not exist. It’s not worth the paper it’s not written on. There is no contract. The govt never came to all of us and asked us if we wanted its services or agreed to the taking of our money. I was never presented with such a contract, and neither was anyone else.
You may say, “Well, your forefathers entered a contract when the nation was founded”. First of all, this is historically false. There was never a time in US history (and probably any state’s history, for that matter) where a govt organization came up to each person and asked for their consent to enter a contract where they would be governed. It’s true that sometimes a Constitution is voted on before being ratified, but this is not a truly consensual contract for at least two reasons: 1) the people who didn’t (or couldn’t) vote, and those that voted against the Constitution all did not express consent, and 2) the people’s options were restricted by govt force because the voting was always between only two alternatives: older govt structure A or newer govt structure B, and the govt controlled what those options were and didn’t allow anyone a choice outside of these. More importantly, even if our forefathers did enter into a contract to make a govt, that contract would not be binding on us today. A contract is only binding to those who enter into it. The contract would be binding on them, but not anyone else, including us today.
Some of you may think to yourselves, “But, of course we can’t go around asking for each person’s consent to a contract. That would be too difficult and impractical on a large scale to create a govt.” This objection is irrelevant to the current narrow debate. The current debate is on whether or not consent is real in social contract theory. Practicality in creating a govt has nothing to do with this question. And, being pragmatic to create a govt still presupposes that we should have the creation of govt as a goal to begin with, and it’s conceivable that we shouldn’t have this goal, according to anarchists. But, never mind that. If you want to rely on practical, pragmatic methods to achieve what you believe is the good end result of govt, then you should probably attempt to justify the state through the ethics theory called “utilitarianism”, instead of using social contract theory.
Since there is no explicit contract, some social contract theorists say that the people give “hypothetical consent”, i.e. they WOULD hypothetically give consent IF they were presented with the option of entering into a contract to create a state, even if they were never literally given this option in real history. I’ll borrow from Michael Huemer in responding to this.
The main problem with the hypothetical social contract is that there is no need to imagine hypothetical decisions when real life decisions are available instead. The main reason why anyone would rely on a hypothetical decision is if they didn’t have access to a real decision. For example, let’s say Sara got injured, is unconscious, and needs medical treatment to save her life. Generally speaking, you need someone’s consent in order to treat them. However, Sara is unconscious, so she has no way of expressing consent. In this case, it could be reasonable to imagine what Sara would say if she was able to make decisions in her right mind, and it could be reasonable to assume that she would agree to life saving treatment. Hypothetical consent may make sense in this kind of scenario. But, this doesn’t relate to govt at all. It’s not true that all people under a govt are unconscious. We are awake and able to answer questions and make agreements in real life. There’s no need for hypothetical agreements.
Some social contract theorists rely on the concept of “implicit consent”, where the people indirectly imply their consent by action or inaction instead of explicitly stating their will through speech or writing in a straight forward and direct way. A very commonly believed mechanism for expressing implied consent is to merely reside in a territory instead of moving out, but we will address this specific mode a little later.
The main problem with the implicit social contract is that there is no need to discern vague implied messages when more obvious and clear explicit messages are available instead. The reason humans use verbal language instead of action/inaction, body language, and the like, is that verbal language has the ability to clearly communicate messages, especially those of complexity. Implied messages through action or inaction can be vague. Explicit statements far exceed nonspoken/nonwritten implied messages in clarity and obviousness. If I explicitly state my will on certain questions or propositions, and even if my express statements are contrary to what is customarily implied or what you think I’m implying, then those explicit statements would take priority over the implied statements in expressing my will. This concept is crucial.
There may be some occasions where implicit statements are sufficient to convey a message clearly. This is typically done for convenience and when the implied message is very obvious to all relevant parties. A message may be so obvious that it doesn’t even need to be spoken and no one need waste their breath. However, this is not the case with govt. It’s not obvious that everyone wants the govt’s services, nor is it obvious that everyone consents to paying for them, or that everyone wants to comply with their dictates. If the govt is somehow confused about whether people consent, it could simply ask them instead of trying to discern an implied will, and some of us (especially me) would explicitly answer “no” to almost everything it does.
Here’s another check. The words “implicit consent” still mean that the consent is real, but simply not explicitly spoken or written. However, I can disprove this theory right now by demonstrating that the consent is NOT real, at least for my case. I know my mind. I’m checking my mind right now to see if I consent… Nope, I don’t consent. Therefore, the govt does not have my implicit consent either. And, there’s no need to use implicit consent if I’m right here saying that I explicitly do not consent.
Implicit Consent by Residing Within a State
As I said earlier, some believe that one way of expressing implied consent is by merely residing within a state’s territory instead of moving out. This belief may be succinctly stated as, “If you don’t like the laws or govt, you can leave the country. By staying here, you imply that you agree and consent”. Or, as Darth Vader puts it:
This principle is not immediately obvious, so adherents tend to use an analogy similar to the following: “If Sara is hosting a dinner party at her own house and invites guests, those guests have to follow Sara’s rules of the house while they are on her property. For example, such a rule may be that no one is allowed to wear shoes inside. If a guest doesn’t like one of those rules, they have the freedom to leave Sara’s property if they want. But, by staying, they imply consent to follow her house rules.”
It’s true that the guests imply consent by staying in Sara’s house. But, the problem with this analogy is that it is not analogous to govt at all. It is dissimilar in crucial ways from the case of govt. Here are several reasons the analogy fails:
1) One of the most crucial differences is that Sara legitimately owns her property that the guests enter, but the govt does not legitimately own all (or possibly any!) of the land and things within its jurisdictional boundaries. Because Sara justly owns her property (assuming she peacefully bought it with her own justly acquired money), she has the moral right to say to everyone: “If you come in here, you have to follow my rules. If you don’t like the rules, you can leave”. This directly follows from the definition of property and ownership. To have property “in” an object MEANS to have the right to control and make decisions about how that object is used and to exclude others from using it if the owner so chooses. The only way that a govt can be similar to Sara is if the govt is the morally rightful owner of all the land in its boundaries. However, govts acquire their land by war, conquest, confiscation, and violence, and these are not morally legitimate means of acquisition, so its claim to just ownership would be false. It’s true that govts sometimes purchase land, but most of these purchases occur under coercive conditions, such as eminent domain.
2) I must admit that govts occasionally purchase land under proximate peaceful and voluntary conditions either from its citizens or from another state to expand its borders, although this is rare compared to other acquisition methods. But, even these purchases occur with funds derived from taxation. I would argue that any such purchase is illegitimate because taxation is stealing and so the govt steals in order to buy the land. If this is the case, then they did not acquire the land through morally legitimate means. However, I can’t quite make that argument completely here at this moment. The definition of stealing is taking property without the property owner’s CONSENT. A social contract theorist would contend that people do consent to taxation by residing in the state’s boundaries, whereas I would contend otherwise. If consent exists, taxation is not stealing. If consent doesn’t exist, it is stealing. So, this takes us back to the same question of whether or not consent exists. Since this is the subject in question that we are trying to justify/disprove, neither social contract theorists nor I can use tax-funded voluntary purchases of land as starting points for our arguments, lest we commit circular reasoning. This last case will simply have to be omitted from the evidence pool for both sides of the debate. Fortunately for my argument, this method of acquisition is rare compared to the more typical methods of land acquisition, which are by brute force and violence, or by tax-funded land purchases under coercive (involuntary) conditions, such as eminent domain. So, this particular question is mostly irrelevant anyway.
3) Moreover, even if the state somehow legitimately obtained jurisdictional boundaries, this still doesn’t mean that the govt owns the land within it. Ownership means that you have the right to control something as you please and exclude others at will. If the govt truly owned all the land, then it could do anything it wanted with all land and banish and exile all non-govt employees at whim, just as Sara has the right to expel all her guests whenever she wants. I doubt that you believe that govt has the right to do this. If so, you would have to admit that the govt clearly does not own all the land in its borders.
4) The analogy of Sara’s house and the theory of implicit consent by residence prove too much, to the detriment of the adherents’ arguments. If it’s true that merely living within a state’s borders constitutes consent, then this would also permit the state to do anything it wants to its people without limits, as long as they choose to stay in the borders. If the govt wished to outlaw all alcohol, force everyone to wear pink hats, and take 100% of our property and income, adherents of the residence theory would have to say, “Oh well, we can’t complain that this is unjust; this is legitimate because we’re choosing to live here, and I guess we actually consent even though we hate these laws”. If, for example, even a democratic govt outlawed Islam (which is possible, regardless of likelihood, in a democratic country where Muslims are the minority and often disliked), and some Muslims still wanted to remain here, most would agree that that law would still be unjust and that Muslims didn’t actually consent to this. But, according to adherents of the residence theory, they would be consenting to this ban simply because they don’t want to leave for another country. If you agree that outlawing a minority religion is unjust and shouldn’t be within govt’s authority, as I’m sure you do, then you cannot also believe that merely residing within a state’s boundaries implies consent.
5) The ability to exit an undesirable environment is easy for individual, small private property enclosures, but very difficult for a large territory such as that within a state’s boundary. This particular point is not as strong or well developed as some other points, but the ease of exit seems to matter in some way. If I don’t like Sara’s house rules, I can easily leave and continue living my life without much disruption. However, if I don’t like the govt’s rules and I wanted to leave the state’s boundaries because of them, that would take a lot of effort and expense and would require me to leave my family, friends and community. This is assuming the govt even allows me to leave, as some don’t. This makes the analogy dissimilar from the case of govt in some way, but I won’t play this card too much. As long as no force is involved, it’s not very clear how ease of exit directly bears on the legitimacy of a rightful property owner’s rules. But, it may matter in some way.
Overall, the analogy of Sara’s house completely fails because of a long list of crucial dissimilarities. If govt isn’t like a normal private property owner, the next question is: who should accommodate whom when there is a disagreement about rules? Why should I have to leave the country? The govt is just a large gang that claims it can tell everyone what to do, and enforce their will on everyone through violence. Why does it have the right to come to me and say, “You wanna stay here? Yes? Well, you’re going to have to do everything I say.” That sounds ridiculous. They should be the one that has to leave or change, not me.
Lastly, I’ll offer a more accurate analogy. Imagine a neighborhood. One day, a gang (maybe they’re even popular) in that neighborhood gains enough strength and manpower and decides that it’s going to go to each house, including mine, and command tribute payments. It says it will perform some services for me as well, but regardless of whether I want or use those services, I must pay tribute. I say, “No thank you, I don’t want your services and I don’t want to give you any tribute, so I don’t consent”. The gang member brandishes his gun and then says, “Well, you can move out of your house and neighborhood if you want to, but you live here, so you actually do consent”. That’s how govt really works. Common sense moral intuition seems to suggest that the gang (govt) is the one who should change or leave, not me.
Implicit Consent of Taxation by Using and Accepting Government Services/Products
Let’s consider the special case of consent to taxation. Some believe that one may imply consent to taxation by voluntarily using or accepting govt’s services/products that are funded through taxation. I say “voluntarily” because, if someone was forced to use the govt’s services, then obviously we couldn’t claim that they consent to the govt’s plans. However, there are some services that people use voluntarily, like roads, public schools, fire departments, police protection, and the judicial system of courts. For instance, if someone burglarizes my house, I could choose to just let it go, search for the burglar myself, hire a private investigator, or go to the govt police and ask them to investigate and find the burglar. No one is forcing me to go to the police if I choose to use them. Similarly, what if I allow my kids to go to public school instead of private school or homeschooling. No one is forcing me to put my kids through public school, so this is another example of me voluntarily using the govt’s services. Such services are funded through taxation. But, does this mean that I consent to the govt taxing me? If I use the very services that the taxes pay for, does this invalidate my complaint that taxation is against my will and therefore stealing? If a libertarian or anarchist uses these govt services, does this make her a hypocrite? The answer is: NO.
Whether or not I accept or use govt’s services has absolutely no relevance to the question of consent to taxation. It’s possible to oppose a tax, and thus not consent, and yet subsequently choose to use the service or product that the govt provides. This should be directly obvious and self evident. However, an analogy may help.
Suppose that Claire is walking down the street. She has $30 in her purse. A passerby named Bill comes up to her and says, “Give me your money!”. Claire responds, “Oh no, please don’t take my money.” Bill: “It’s ok, I’m going to buy you a pizza slice with it”. Claire: “That’s odd. But, how does that matter? This is my money, you have no right to take it. I don’t want you to buy me pizza with my money.” Bill pulls out his gun and points it at her, “Give me your money now or you’ll be sorry”. Claire finally gives Bill her $30 out of fear. Bill goes and buys a $15 pizza slice and keeps the rest (the other $15). He takes the pizza slice to Claire and says, “Do you want this pizza? Regardless of your answer, I won’t give you any of your money back”. Claire would generally prefer a sandwich instead of a pizza slice, but she realizes that, even though she just got robbed, she might as well get as much out of the situation as she can. After all, she has no chance of getting her money back. She might as well take the pizza and at least get something in return for Bill’s robbery. So, she accepts the pizza and eats it. Then Bill says, “Ah, so you consent to me taking your money. See, I didn’t steal your money against your will. You obviously consented to my actions because you’re eating the pizza”.
Bill is clearly out of line and is guilty of stealing from Claire. It’s also clear that Claire did NOT consent to the taking of her money, even if she subsequently accepted and ate the pizza that the robber bought for her. This demonstrates my point. However, you may have noticed some of the ancillary aspects of the story, such as the abnormally high price of the pizza slice, the fact that Bill kept a portion of the money, and that Claire would have rather wanted a sandwich instead of a pizza slice. This was just to expand the analogy a little to make it even more realistic. In reality, govts don’t just take your money and spend all of that on services and products that you want and then give those to you. Only a portion of your tax dollars goes to that end. A good chunk of your tax dollars goes to paying all the bureaucrats, politicians, and other middlemen before directly paying for your services and products. Also, whenever the govt is in charge of providing some service or product, it’s always vastly more costly than if you were to use your own money to buy something in the marketplace. But, we don’t have time here to get into the economic explanations of why this occurs. Lastly, Claire didn’t have a choice in what Bill bought for her. Bill decided it was going to be a pizza slice, even though Claire would have liked a sandwich instead, let’s say at equal cost. This represents govt in that an individual person usually doesn’t get a choice in what the govt is going to offer and buy them. Usually, whatever it is, they can just accept it or not. The govt doesn’t necessarily match your preferences in how you want your money spent.
Even if you don’t like these ancillary attachments to the analogy, the core of the analogy still holds. Even if the govt were efficient and cost effective and all the money went directly to buying services/products for you, and even if Bill only took $8 from Claire at gun point and then bought her a sandwich (something which she generally likes more than pizza) that she accepted and ate, this does not take away from the fact that Bill took Claire’s money without her consent. Claire still wanted her money for herself, and Bill still used the threat of violence and force to compel Claire to give him her money, even though she clearly stated that she does not consent to the taking.
This is similar to what happens if I choose to put my kids through public school instead of homeschooling or a private school. Even a libertarian or anarchist would not be hypocritical if they chose to put their kids through a public school to take advantage of a “free” service offered by govt. This is because the govt is going to charge them taxes to pay for public schools regardless of whether or not they choose to use public schools. If a parent is going to be forced to pay for public schools regardless of whether or not their kids use them, it could be wise to go ahead and use them (if they think public schooling is better than their alternatives), and this would not contradict their claim to be opposed to being taxed for the use of funding public schooling.
For certain classes of govt services, there is another reason why using govt’s services does not constitute consent. Let’s say that there is a certain service that you value. You would usually buy this service from someone in the private sector free market. But then, govt goes around forcibly shutting down (or significantly restricting) all the private suppliers of this service and then starts providing that same service instead. In this case, one might use the govt’s services simply because the govt forcibly restricts other suppliers and thus restricts your choice to the govt as the sole supplier. Under common sense moral intuitions, the govt is acting wrongfully and should then be obligated to provide that service to you if it doesn’t allow you to get it elsewhere. This is true even if we didn’t pay for it through taxes. It’s govt’s fault that people have to use their services if they forcibly blocked people from using other private providers. An example of this is if people use US currency dollars as a medium of exchange. Technically, in a completely free market, people would be able to choose between competing private currencies (likely from various banks) depending on which currency they trust the most and is most convenient. But, govt outlaws other currencies and says, “If you’re going to use currency, you HAVE to use my currency only. Otherwise, you’re stuck with bartering”. A libertarian or anarchist couldn’t be blamed for hypocrisy for then using that currency, and such use does not constitute consent to the govt’s laws and services.
CONSENT BY VOTING IN DEMOCRATIC ELECTIONS
Some people believe that as long as someone has the opportunity to vote in a democratic election, then they demonstrate consent to what the govt does. I hesitate to cover the problem with democracy here because I consider it a slightly different topic than the social contract. There are many problems with the moral legitimacy of rules by the majority, and these are/will be covered elsewhere. But, we will cover a few things here as it narrowly relates to the topic of consent. Whether someone might perceive voting as explicit or implicit consent, I don’t know, but some believe it to demonstrate consent in some way.
One straight forward problem is that if some individual person votes against “something” (or someone) in an election, and that “something” still wins the election because a majority of other voters accept it, there’s no reason to believe that this individual person actually consents. The most you could attempt to say is that only those who voted in favor of the “something” consent to that “something”. Clearly, those who voted against the “something” do not consent.
You may say, “OK, well we can’t please everyone. If we had to have unanimity for everything, we could never practically get govt to get anything done”. First, this presupposes that govt should “get anything done” at all in the first place. Second, as I said before, this is a different subject. This post is not here to determine how to practically create the best govt, it’s just about whether or not social contract theory is morally acceptable and reasonable.
Another problem is that the individual voter never had a realistic chance of consenting to the overall system and govt structure that they are voting within. They may be voting simply because it is their only way to at least nudge policies toward their preferences, even though they disagree with the overall structure of govt and what kinds of decisions most of the politicians make on a day to day basis. Also, the govt forcibly controls the options that can be chosen during some election. A voter never gets to choose whatever they want in general, they only get to choose among a very small number of options that have been pre-selected and presented before them, and a voter may generally dislike all those options, but they vote just to pick the option they dislike the least. Furthermore, in a representative indirect democracy, voters can only pick the representatives; they usually can’t vote for individual questions and decisions, further separating the reality of consent from the voters. Clearly, although a voting system may allow a voter to exercise choice in some very small, indirect, and restricted way, it is not even close to expressing true and full consent. Voting systems still contain high levels of coercion to dramatically reduce choice before, during, and after an election occurs.
The social contract theory rests on the belief that individual people, initially fully sovereign over themselves, voluntarily chose (consented) to enter into a contract between themselves and/or with a group of people called the “state”, where they give up some of their rights and sovereignty, presumably in exchange for certain benefits and services rendered by the state. Although a literal contractual agreement never explicitly took place, adherents maintain that people would agree, or implicitly agree to such a contract. However, none of these hypothetical or implicit consent theories stand up to basic, common sense, intuitive moral standards of what constitutes legitimate consent in a contract. This in itself does not necessarily mean that govt’s are illegitimate or that we should completely abolish the state. However, it does mean that we cannot use social contract theory as an attempt to justify the state. Instead, if one wishes to justify the state, they would have to find some other explanation.