implied consent revisited

I find today’s Daily Article at interesting and unusual. In “Why the State Celebrates Its Failures”, Grant M. Nülle moves from a fairly specific review of the fiasco that was and is the war in Iraq to a more general review of why the State has no incentive to correct, reduce, or avoid failures (unlike the incentive structure in civil society, where the prerequisite of individual consent naturally promotes successes and penalizes failures). It’s a good article, well worth reading, but what brings me to blog here about consent is an older Daily Article that Grant Nülle cites at the end of his own.

What is considered theft in the private sector is “taxation” when done by the state. What is kidnapping in the private sector is “selective service” in the public sector. What is counterfeiting when done in the private sector is “monetary policy” when done by the public sector. What is mass murder in the private sector is “foreign policy” in the public sector.

Lew Rockwell, “Why the State Is Different”

It’s a great quote from an article I’d never read, so I went back and had a look at “Why the State Is Different”.

Before I get to the point, here’s another bit of the article that’s been moved to my quotations file:

There will always be those who claim to have special rights over the rest of society, and the state is the most organized attempt to get away with it. To focus on these people as a unique problem is not an obsession, but the working out of intellectual responsibility.

Lew Rockwell, “Why the State Is Different”

Rockwell’s article uses what was then the recent issue of anti-spam legislation to review the central lessons of how the State is irreconcilably different from and outside the rules of the rest of society. (A point that should be obvious to anyone not already indoctrinated to avoid seeing it.)

Here’s Lesson Two: “the state is the only institution in society that can impose itself on all of society without asking the permission of anyone in particular. You can’t opt out.”

Again, it’s an obvious point, whose ramifications would be obvious in any other context, but we’re trained to assume the State’s legitimacy and require arguments against it, rather than applying to the State the same rules we apply everywhere else.

I myself, despite a few years of self-deprogramming now, still fall into this trap.

When iceberg recently asked about two of the standard defenses of state legitimacy and the moral obligations of obeying legislation, I answered the legal positivism question more ably than the question about implied consent. I’ve spent more time thinking about the former than the latter.

It’s not that I have any problem with the responses I gave, but I think I completely missed the most devastating argument against implied consent.

I’ve written more than once (here, here, here, and here) about the question of language banditry — the deliberate appropriation of well-established words with well-established meanings to denote something different (or opposite) while attempting to maintain the previous connotation. My standard examples are liberal, liberty, free, freedom, free market, rights, etc. One could throw in left-wing, progressive, and even the terms crime, law, rule of law, and civil society. Where I’m noticing it here is with the words contract and consent.

How can I be held liable for a “social contract” if I never signed it?

Well, say the social-contractarians, your consent is implied.

(More on implied consent below.)

But, say I, a contract has specified responsibilities for both parties, and breach of contract by either party is understood to release the other party from all contractual obligations.

Well, er, um, it’s not that sort of contract …

Then why do we let them get away with calling it a contract at all?

OK, finally: implied consent. I’m fine with the idea of implied consent in civil society. If the host says, “I’m ordering pizza — is everyone OK with anchovies?” I don’t have to explicitly say Yes outloud to give my consent. My consent to anchovies is implied by the absence of my dissent.

If I lend you my lawnmower and then complain when you use it to mow your lawn (“I never said you could use it — I only said you could borrow it!”) I’d be taken for crazy. In a culture where borrowing implies using, consent to borrow implies consent to use. And if you ask to borrow my mower and I say that I’d like it back hosed off and refueled, you don’t have to explicitly agree to that condition to be responsible for it. Borrowing the mower when you know my conditions implies your consent to those conditions.

But notice that in all of these cases, there’s a way to withdraw consent. In fact, the very existence of consent depends on the possibility of its absence!

I could speak up about anchovies and you could decline to borrow the mower if you don’t feel like hosing it off or putting gas in it when you’re done.

Where’s the withdrawal-of-consent option in the case of statutory law?

To take the example offered by iceberg’s interlocutor, my buying a gun in New York does not imply my consent to New York State’s authority concerning gun laws.

Well, says the statist, you have the option not to buy the gun.

Yes, but that too would be implying consent to the State’s authority.

But, he says, you don’t have to live in New York — you could always move to some place that doesn’t require gun registration.

But leaving New York for that reason still implies consent to the State’s authority — or else why would I be moving somewhere else in the first place?

My question is this: how do I withdraw my consent to the State’s authority? If I can’t do so, then you can’t call it consent.

In fact the only possible way for me to explicitly challenge the State’s authority on the issue is not to leave quietly, but to stay put and explicitly oppose its edicts in word or deed. The conclusion is the exact opposite of the one implied by the advocates of implied-consent theory.

Does this mean I can do whatever I want, anywhere I want, so long as I’ve never implied consent to behave otherwise?

No, of course not. It only means that whatever restrictions there are on my behavior will have to be accounted for by means other than an appeal to implied consent. I believe in natural rights to person and property. We can argue about those things some other time.

What social contracts, implied consent, legal positivism (and probably most other statist positions) are masking is the statists’ real core belief: eminent domain — the State owns everything.

When Samuelson asserts that economic regulations are like traffic regulations, he wants us to assume that the State owns the economy in the same way that most people accept state ownership of “public” roads. (But even if you believe that the State can legitimately own a specific strip of territory, how can you compare such territorial ownership to an abstraction like the economy? The economy is nothing more than the name we give to the aggregate phenomena of individual exchanges. When two people want to exchange something, the something can be owned, but the exchange itself cannot be.)

In essence, all these supposed arguments for the State’s legitimacy are based on the presupposition of the State’s legitimacy. Assuming your conclusion is about as fallacious as it gets.

The state’s legitimacy is exactly what’s in contention. I argue against. If you want to argue for, then you’ll have to appeal to something other than the very thing we’re disagreeing over.

Social contracts and implied consent don’t cut it.

If I ever signed the social contract then the State broke its side of the deal repeatedly, and I am therefore no longer bound by it. But no, of course I never signed it. I never gave explicit consent. I never implied consent. And if I was ever taken to have done any of those things, I hereby officially withdraw my consent.

Henry David Thoreau

“Know all men by these presents, that I, Henry Thoreau, do not wish to be regarded as a member of any society which I have not joined.” […] If I had known how to name them, I should then have signed off in detail from all the societies which I never signed on to; but I did not know where to find such a complete list.

Henry David Thoreau
Civil Disobedience


6 Responses to implied consent revisited

  1. born to run says:

    If only we were living in an age in which such a reasonable argument would be accepted rather than rejected in favor of illogical claims.

  2. AC says:

    I agree with born to run, If only… Nice post. Clear. Thanks.

  3. iceberg says:

    1. Great essay; use it in your book :-P2. I think you meant <>Eminent<> Domain3. “<>by means other than <>an appeal to implied consent.<><>“I thought all “appeals to…” type arguments are classified as fallacies (such as authority, majority, fear, pity, spite). Would you still say that implied sanction/consent is just an assertion, and not more?

  4. bkmarcus says:

    Semi-(il)literacy rears its ugly head. Yes, the State claims it is eminent while I clearly perceive it as imminent. I’m glad my meaning got through. I guess I’m now convinced that implied consent (in the context of statutory law) is not only false but downright fallacious. It struck me as merely false at first because it <>is possible<> for me to imply consent — it’s just that I never did. But that’s not really their contention, is it? Their contention is that <>we all<> imply consent whether we mean to or not, whether we know it or not. That’s clearly more than merely false. You’re right. It’s illogical. But as a fallacy, it’s pretty complex. Any piece of it is a viable assertion, false or not. But when put together, the pieces create a self-contradictory whole.

  5. Anonymous says:

    implied consent= a forced submission to an unwarrented search conducted by an armed official of the state under penalty of arrestthis is my definition of the implied consent laws for drivers licences.Implied consent is just a pretty way of describing a brutal show of State authority, they could at least call it what it is.I will submit, but I never consented!

  6. bkembarrasingly i must say that long posts tend to lose me – i’m too accustomed to building briefings for high level executives – but i suggest that the “social contract” is not with specific laws, but with the legal process. if one does not like “a” law like gun registration in new york, then one can use the law to attempt to end gun registration. and, that is the contract – that we have the right to change the law by using the rules of the law (u.s. constitution, federal law, state law, etc.). when you intentionally break a law you’re a criminal, when you try to break the process you’re a rebel.Q

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