Where’s my copy of the social contract?

contractYesterday’s "word of the day" at Wiktionary.org was …

social contract:

(philosophy, politics) An implicit agreement or contract among members of a society that dictates things such as submission of individuals to rule of law and acceptable conduct.


David Friedman has said, “There may be two libertarians somewhere who agree with each other about everything, but I am not one of them.” Nevertheless, there are certain things that all libertarians do agree on. One of them is that the concept of the social contract is bogus. Here are my thoughts on the subject from about 7 years ago:

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.

“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


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