The Myth of the Social Contract

The social contract theory of the
State has it that the State is formed by the agreement of the People to establish a
monopoly on legitimate violence to perform certain functions. Social contract theorists
sometimes disagree about the nature and scope of the State’s functions, but most agree
that they include, at a minimum, providing police, courts, & the military. Many social
contract theorists argue that other things should be done by the State, but few besides
anarchists question whether the State should do these things at all. For the sake of this
discussion, then, let’s stick to these three. If the theory holds for them, then it may
hold for others as well. If it doesn’t hold for these, then it may be difficult to see how
it could justify additional State functions.

On this minimal conception of the functions of the State,
then, social contract theory has it that the People are obligated to pay taxes to the
State and abide by its rules in exchange for the protection they get from the police,
courts, & military. In turn, the State is obligated to protect the People. In theory,
there is mutual agreement between the People & the State to these terms and this
substance, and there is mutual obligation. But does this theory hold in practice? In
practice, is there really mutual agreement and mutual obligation about this relationship?
I will argue that, in practice, neither mutual agreement nor mutual obligation can be
found in the relationship between the People and the State. Further, I will argue that, in
practice, there is no such social contract.

Some argue that the Constitution of a country is the social
contract. But, as Lysander Spooner pointed out, written Constitutions have "no
inherent authority or obligation." They have "no authority or obligation at all,
unless as a contract between man and man." At most, they can only be contracts
between those who were alive and "already come to years of discretion, so as to be
competent to make reasonable and obligatory contracts" when they are written.
Further, they can only obligate those "consulted on the subject, or asked, or
permitted either to express their consent or dissent in any formal manner." And,
those who may authorize & be obligated to Constitutions have "no natural power or
right to make it obligatory upon their children." ("No Treason: the Constitution of No Authority," the Lysander Spooner Reader, p. 71)

How else could the people agree to the State? "If they
have done so, they can only have done so in only one of both of two ways, viz., by voting,
and paying taxes." (ibid, p.
73)

Taxation might seem at first to indicate the consent of the
governed since people seem to willingly pay the State to protect them. However, the Mafia
has also claimed to "protect" people in exchange for payment. In fact, the
"protection" money collected by the Mafia isn’t willingly paid at all, but
extorted by the Mafia from its victims. In fact, it isn’t "protection" money at
all, but extortion. Extortion is defined as "obtaining property from another by
wrongful use of actual or threatened force, violence, or fear, or under color of official
right." (Black’s Law Dictionary, p. 302). The Mafia’s "protection" is
neither freely offered nor freely accepted. Those who don’t pay their
"protection" money are threatened with harm to their lives, liberties, &
properties.

The same thing goes for taxation. The State doesn’t wait
for anyone to request its "services," and, like the Mafia, its offers are ones
that you can’t refuse. Those who decline its offers are also threatened with harm to their
life, liberty, or property. Where the Mafia may firebomb the home or business of those who
don’t pay up, the State will rob, beat, imprison, and even kill those who refuse to pay
their taxes because they reject the "services" the State has to offer.

Taxation may seem analogous to rent paid by a tenant to its
landlord, but this analogy doesn’t hold water, either. While legitimate landlords get
their property by being the first to make use of it and mark it off or by getting it in
trade or as a gift from someone who did, etc., the State doesn’t get its territory that
way. The State gets its territory the same way as the Mafia: by violence, or the threat
thereof. Thus, neither the State nor the Mafia are the legitimate owners of anything they
get by means of their extortion.

Furthermore, this assumes that the State claims title to
all the real estate within its territory, which isn’t always the case. In fact, land title
was held "allodium" ("Land held absolutely in one’s own right, and not of
any lord or superior; land not subject to feudal duties or burdens. An estate held by
absolute ownership, without recognizing any superior to whom any duty is due on account
thereof." – ibid, p. 39), or "fee simple absolute" ("A fee simple is
an estate limited absolutely to a man and his heirs and assigns forever without limitation
or condition. An absolute or fee-simple estate is one in which the owner is entitled to
the entire property, with unconditional power of disposition during his life, and
descending to his heirs and legal representatives upon his death intestate." – ibid,
p. 317) in England prior to the Norman Conquest. But, as Thomas Jefferson pointed out in
his "Summary View of the Rights of British America":

"America was conquered, and her settlements made and
firmly established, at the expense of individuals, and not of the British public. Their
own blood was spilt in acquiring lands for their settlement, their own fortunes expended
in making that settlement effectual. For themselves they fought, for themselves conquered,
and for themselves alone they have right to hold. No shilling was ever issued from the
public treasures of his Majesty, or his ancestors, for their assistance, till of very late
times, after the colonies had become established on a firm and permanent footing. That
then, indeed, having become valuable to Great Britain for her commercial purposes, his
Parliament was pleased to lend them assistance against an enemy who would fain have drawn
to herself the benefits of their commerce, to the great aggrandisement of herself, and
danger of Great Britain. Such assistance, and in such circumstances, they had often before
given to Portugal and other allied states, with whom they carry on a commercial
intercourse. Yet these states never supposed that by calling in her aid, they thereby
submitted themselves to her sovereignty. Had such terms been proposed, they would have
rejected them with disdain, and trusted for better, to the moderation of their enemies, or
to a vigorous exertion of their own force… "

America was not conquered by William the Norman, nor its
lands surrendered to him or any of his successors. Possessions there are, undoubtedly, of
the Allodial nature. Our ancestors, however, who migrated hither, were laborers, not
lawyers. The fictitious principle, that all lands belong originally to the King, they were
early persuaded to believe real, and accordingly took grants of their own lands from the
Crown." – Thomas Jefferson, "Summary view of the rights of British
America," LIFE & SELECTED WRITINGS OF THOMAS JEFFERSON, ed. Adrienne Koch &
William Peden, Random House, (c) 1972, pp. 294-95, 308

However, this error didn’t waive the right.

There are other essential differences between the rent paid
by tenant to landlord and the tax paid by people to the State: tenants voluntarily choose
to enter into their landlord’s estate, and to pay the rent charged by the landlord for the
tenant’s occupation of the estate. Furthermore, tenants can quit the premises and thus
relieve themselves of liability to pay rent to the landlord. Neither condition obtains in
the relationship between the People and the State. Even if we assume that the State holds
legitimate original title to its territory, this could only obligate people to pay rent if
they’d voluntarily occupied it in the first place. Furthermore, the People aren’t relieved
of tax liability even if they leave the country if the country in question is that claimed
by the Federal Government of the USA, which requires its citizens to pay taxes to it no
matter whether they live within its geographical boundaries or not.

The very word "taxation" means "forced
exaction," according to Charles Adams, tax attorney and leading historian of taxation
(see his books "Fight, Flight, Fraud," and "For Good and Evil"). As he
points out, the common-law principle of fair benefit received for consideration given has
no place in tax law. Black’s Law Dictionary says: "Essential characteristics of a tax
are that it is not a voluntary payment for donation, but an enforced contribution…"
(p. 758)

There are a number of reasons why voting isn’t an
expression of the consent of the governed as well. One is that voting is also done under
duress, just as is paying taxes. Taxes are assessed whether one votes or not, so many vote
out of self-defense in order to prevent their taxes from being used against them in some
way or another. Another is that the majority often votes to violate the rights of the
minority, which violates the principle that contracts to violate the rights of another are
invalid. Still another reason is that since voting is done by secret ballot there can be
no meeting of the minds as is necessary for any legally binding agreement. Yet another
reason is that voting could at most only bind those who actually voted in any given
election, but elections are commonly held to obligate those many people who don’t vote.
Still further, those who vote for candidates who lose the election can’t be said to have
consented to the rule of the winner. There may be other reasons, but I think these are
enough to prove that voting can’t be an expression of the consent of the governed.

One could still argue that even though there’s no mutual
agreement to pay taxes & obey the State’s rules in exchange for the State’s
protection, the people are still obligated to do so because the State is obligated to
protect them whether they agree to it or not. But, in fact, not only doesn’t the State
have any obligation to protect those who haven’t agreed to it, it doesn’t have any legal
obligation to protect people who’ve not only agreed to the State’s protection but
desperately need it because they have no other way of getting protection. Neither the
police, courts, military, or any other officials or employees of the State have to protect
them:

"As numerous courts have held, they have no legal
obligation to protect anyone in particular. You cannot sue them for failing to prevent you
from being the victim of a crime." – Jeffrey Snyder

This is an instance of the legal doctrine of
"sovereign immunity," which stems from the medieval notion that the king could
do no wrong. Black’s Law Dictionary says that it "precludes litigant from asserting
an otherwise meritorious cause of action against a sovereign or a party with sovereign
attributes unless sovereign consents to suit." (p. 724) The State has been so kind as
to waive sovereign immunity in some cases under the Federal Tort Claims Act of 1946, but
"preserves governmental immunity with respect to the traditional categories of
intentional torts, and with respect to acts or omissions which fall within the
‘discretionary function or duty’ of any federal agency." (p. 317) What is the scope
of this "discretionary function or duty"? It can be found in Black’s Law under
the heading of "sovereignty": "The power to do everything in a state
WITHOUT ACCOUNTABILITY, – to make laws, to execute and to apply them, to impose and
collect taxes and levy contributions, to make war or peace, to form treaties of alliance
or of commerce with foreign nations, and the like" (emphasis added). The several
states under the federal government also have their own statutes relieving them and the
city and county government under them of liability for any and all failures to protect the
people from threats to their lives, liberties, and properties as do the county & city
levels of government.

One could still argue that even though the State has no
legal obligation to live up to its end of the deal it still has a political obligation: if
its officials breach the social contract, then they can get defeated in their next
election and replaced with someone else. However, this objection was anticipated by
Lysander Spooner as well:

"Suffrage is equally powerless and unreliable. It can
be exercised only periodically; and the tyranny must at least be borne until the time for
suffrage comes. Besides, when the suffrage is exercised, it gives no guaranty for the
repeal of existing laws that are oppressive, and no security against the enactment of new
ones that are equally so. The second body of legislators are liable and likely to be just
as tyrannical as the first. If it be said that the second body may be chosen for their
integrity, the answer is, that the first were chosen for that very reason, and yet proved
tyrants. The second will be exposed to the same temptations as the first, and will be just
as likely to prove tyrannical. Who ever heard that succeeding legislatures were, on the
whole, more honest than those that preceded them? What is there in the nature of men or
things to make them so? If it be said that the first body were chosen from motives of
injustice, that fact proves that there is a portion of society who desire to establish
injustice; and if they were powerful or artful enough to procure the election of their
instruments to compose the first legislature, they will be likely to be powerful enough or
artful enough to procure the election of the same or similar instruments to compose the
second. The right of suffrage, therefore, and even a change of legislators, guarantees no
change of legislation – certainly no change for the better. Even if a change for the
better actually comes, it comes too late, because it comes only after more or less
injustice has been irreparably done.

"But, at best, the right of suffrage can be exercised
only periodically; and between the periods the legislators are wholly irresponsible. No
despot was ever more entirely irresponsible than are republican legislators during the
period for which they are chosen. They can neither be removed from their office, nor
called to account while in office, nor punished after they leave their office, be their
tyranny what it may. Moreover, the judicial and executive departments of the government
are equally irresponsible TO THE PEOPLE, and are only responsible (by impeachment, and
dependence for their salaries), to those irresponsible legislators. This dependence of the
judiciary and executive upon the legislature is a guaranty that they will always sanction
and execute its laws, whether just or unjust. Thus the legislators hold the whole power of
the government in their hands, and are at the same time utterly irresponsible for the
manner in which they use it." – Lysander Spooner, "Trial By Jury," THE
LYSANDER SPOONER READER, pp. 126-27

How could the State be obliged to protect those who reject
its offer if it isn’t even obliged to protect those who not only accept the offer but
whose very lives depend upon it?

What about enforcement of the State’s obligation to protect
the people by means of the right of revolution? First of all, in order for the people to
be able to overthrow the State by armed revolution they have to be able to break the
State’s monopoly of legitimate violence by not only being able to keep & bear arms but
also by having the authority to judge the legitimacy of their actions. Thus, they have to
rob the State of its defining characteristics. The government that would then be
overthrown may be tyrannical, but it wouldn’t be a State except in the sense of being an
organization which tries to monopolize legitimate violence by means of force & fraud,
however unsuccessfully it might do so. In fact, even if a State didn’t claim sovereign
immunity, even if it were based upon the consent of the governed, it still couldn’t be
held to its end of the deal without first being robbed if its status as a State. There
being no practical way to enforce obligations upon an existing State, no such obligations
can exist in practice, which means that there can be no mutual obligation between the
People & the State – which means that there can be no contract between People &
State, since mutual obligation is a necessary condition for contract to exist.

Secondly, Spooner answered this one as well: "The
right of revolution… is of no practical value, except for those who are stronger than
the government. So long, therefore, as the oppressions of a government are kept within
such limits as simply not to exasperate against it a power greater than its own, the right
of revolution cannot be appealed to, and is therefore inapplicable to the case. This
affords a wide field for tyranny…" – ibid, pp. 129

It turns out that the alleged "social contract"
is doubly one-sided: the only party to agree to it is the State, and the only party that
is obliged by it is the People. The State agrees to collect taxes & enforce its rules
upon the People, and the people are obliged to pay those taxes & abide by those rules.
There is no mutuality of agreement nor any mutuality of obligation between the State and
the people, and, therefore, can be no contract. There is no more contract between the
State and the People than there is between the Mafia and the victims of its extortion
rackets or rapists and their victims. Thus, the People have no obligation to pay taxes or
to obey the State, and the State has no legitimacy in attempting to enforce any such
obligations.

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