Social Contract: The myth

For a long time, libertarian thought was mainly ignored. Then came a period of articles making fun of those silly libertarians wanting to ‘privatize sidewalks’ and the like. Nowadays, it seems that we are definitely in the ‘fight’ stage. Not a week goes by without some article on the Web bitterly assailing libertarians and libertarian ideas.

Even Nolan Chart, founded by a libertarian, is no exception. Not every week, admittedly; but the Chart has seen its share of articles with titles like “Libertarianism Doesn’t Work,” “Why Libertarianism can Never Succeed,” “Where Libertarianism Fails,” and even “Libertarians are Camoflaged Gay Libers” [sic].

Normally I read and ignore; but not long ago I read a most remarkable one that calls for comment: “The Libertarian Delusion” by a Mr. James Luko. What is remarkable is not that Luko dislikes libertarian ideas – his biography does identify him as a career bureaucrat, after all – but how he argues against them.

Luko takes umbrage with an earlier article by libertarian James Goodfellow, called “The Delusion of Consent;” and his lengthy complaint boils down to one thing: “The Delusion of Consent soundly ignores the theory of Social Contract.” Even worse, Goodfellow’s article is inconsistent with his actual belief: “The author’s argument ignores the theory of social contract, yet, that is what the author himself participates in.”(1)

If that were true, then not only Goodfellow but many other libertarians indeed would be deluded. So, since, Luko urges us to “separate rationalism from empiricism” and since the above claim is undoubtedly empirical, let us examine Luko’s empirical evidence that the “social contract” exists, and that Goodfellow does participate in it. Before that, though, it may be useful to look at what exactly that “contract” is supposed to entail.

The “Social Contract”

As Luko claims a historical knowledge not possessed by the average libertarian (“How little you know of history and government,” he tells one libertarian critic of his article), one might expect him to share the history of the “social contract” theory. Surprisingly, he does nothing of the kind. But no matter; let us do that for him.

While the concept can be traced back to Plato, discussion of the theory usually begins with the 1651 book, Leviathan, by Thomas Hobbes (1588-1679). Hobbes’s archaic diction is not all that quotable; but this is a fair summary of his book’s thesis:

Prior to State Government or ‘Common Power’ as Hobbes terms it, men do not live in a condition of Peace and security but in … a condition of War…. The fear of death and the absence of security to live and prosper in peace makes them seek a political society of order, peace and security. They congregate to mutually create a contract or Covenant. This gives one of their number Power to end the condition of War….

The Sovereign Power provides Peace and Security from internal and external threats. To this end, he has absolute Power(s), which Subjects must obey. Absolute power is required as limited, constitutional power would permit spaces for the re-emergence of the state of war…. Absolute power does not permit such spaces to emerge, as it is what would now be termed totalitarian. (See Chapter 29, Leviathan). Further, as men have created the Absolute Monarch, by this act they have given assent to any act or action he does or, to any law he makes…. So in obeying the Absolute Monarch, the subjects are obeying themselves.(2)

Hobbes speaks of a “Covenant;” he does not use the term “Social Contract.” The latter term comes from a later writer, Jean-Jacques Rousseau (1712-1775), author of Du Contrat Social (1762). Rousseau has sometimes been called a libertarian because of that book’s famous opening line: “Man is born free, and is everywhere in chains;” however, its content has little to do freedom, and more with justifying the chains. Here is Rousseau description of the “contract” and its terms:

Properly understood, these clauses come down to one — the total alienation of each associate, together with all his rights, to the whole community…. Each man in giving himself to everyone gives himself to no-one; and the right over himself that the others get is matched by the right that he gets over each of them…. Filtering out the inessentials, we’ll find that the social compact comes down to this: ’Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole.'(3)

Hobbes and Rousseau disagree on who gets to form the government – Hobbes wants an absolute monarch, while Rousseau prefers “the whole community” – but both are equally “totalitarian,” as Jenkins puts it. Both agree that individual people have no rights against their government – that government may do whatever it wants to them – because they consent, or agree, to let it do so.

Luko may object that he doesn’t want that kind of a contract, and his own variant does sound milder; his terms are simply that “the government is not a private citizen and has the people’s consent to collect taxes – in return for government goods and services“.

But consider: Who decides how much tax a government can collect? That government. And who decides what “goods and services” a government shall provide, and to whom? The same government. So what Luko’s “contract” comes down to is: The people consent to their government taking whatever money and resources it wants, from whomever it wants, and doing whatever it wants with them.

A rather “totalitarian” view. And why should it be limited to taxes? If one believes that everyone consents to government doing whatever it wants to them, on this one matter; on what basis can one deny that everyone consents to government doing whatever it wants to them, on any matter? If a government bans some product you like to use, or some action you like to perform: didn’t you consent to that ban? If a government puts you in jail: didn’t you go voluntarily? If a government agent kills someone: wasn’t that really a form of suicide?

Who would ever agree to such terms? Who is ever asked to agree to them? Well (surprise, surprise!), in Luko’s view no one has to agree – no one even has to be asked – because it turns out we have already consented.

When, where and how? Did any of us sign such a contract? Of course not; but Luko claims that such formalities can be dispensed with:

One does not need to sign a contract in order to have a “bilateral agreement” and the social contract model is just such a case, in return for protection – goods and services – citizens pay taxes – this needs no further confirmation, signings, acknowledgements, etc. etc…. tacit acceptance of the American social contract does give consent to the legitimacy of taxation – just as consent to any contract gives legitimacy of enforcement of a contract.

Indeed; but (“tacitly” or not) we have to have consented to the “social contract” at some time, somewhere, somehow. So when, where, and how is that supposed to have happened?

Luko’s argument from voting

Luko first claims that we consent by voting: “we have elections which confirm the legitimacy of the government at all levels“. But that will not do: one cannot infer explicit consent to anything from the fact of an election. Many people (sometimes a majority) do not vote at all; of those who do vote, many (often a majority) do not vote for the side that wins; even of those who do vote for the winners, many of those are just voting against the losing side. So how is this evidence that everyone consented to anything?

Why, it turns out to be “tacit” consent in every case: on the “social contract” view, all three groups turn out to be consenting. Herbert Spencer poured scorn on such reasoning almost 200 years ago:

Perhaps it will be said that this consent is not a specific, but a general one, and that the citizen is understood to have assented to every thing his representative may do, when he voted for him. But suppose he did not vote for him; and on the contrary did all in his power to get elected some one holding opposite views — what them? The reply will probably be that, by taking part in such an election, he tacitly agreed to abide by the decision of the majority. And how if he did not vote at all? Why then he cannot justly complain of any tax, seeing that he made no protest against its imposition. So, curiously enough, it seems that he gave his consent in whatever way he acted — whether he said yes, whether he said no, or whether he remained neuter! A rather awkward doctrine this. Here stands an unfortunate citizen who is asked if he will pay money for a certain proffered advantage; and whether he employs the only means of expressing his refusal or does not employ it, we are told that he practically agrees; if only the number of others who agree is greater than the number of those who dissent. And thus we are introduced to the novel principle that A’s consent to a thing is not determined by what A says, but by what B may happen to say!(4)

Luko’s argument from residence

Perhaps Luko sees a problem with that argument, because he offers another: one consents to a government’s actions by living on its territory: “since the author of “Delusion of Consent” has not left America, he accepts the social contract theory. Unless the author is revolting or emigrating from America, the author is consummating the legitimacy of our government – end of story.”

That is hardly the “end of story,” as Luko doubles down on the claim: “The USA, unlike North Korea, is NOT forcing you to stay in America, nor to work, you remain in the USA because you like the end product that American government gives you – better than Canada, Mexico, Russia – etc. otherwise you would have moved to those countries. The stamp of consent is all over your life without hesitation.”

Given Luko’s claimed historical expertise, he must know that David Hume (1711-1776) dealt with that argument more than 200 years ago:

Can we seriously say that, a poor peasant or artizan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages that he acquires? 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.(5)

Luko’s argument from non-violence

Indeed, Luko also seems aware of the problems with using residence (as well as voting) as evidence of consent; and seems to concede that his use of those phenomena as evidence of consent was mere handwaving. For, when questioned, he abandons both and comes up with a third bit of supposed evidence. That occurs in a supplement to his article, in which he argues that the government of North Korea – which has no elections, and, as he already noted, does not allow its citizens to emigrate – also governs purely by consent:

Who said social contract does not apply to non-democratic nations? Social contract does apply – and when people “reject” the social contract – they rebel [if] they don’t have the option of leaving or voting or changing the government by peaceful means…. So yes, even nations like North Korea and Cuba are legitimate governments employing the social contract model…. internal legitimacy is wherein the majority of the population acquiesces to the current government and generally follows that government peacefully – that is true in Russia, Cuba, Vietnam, China, North Korea – as well as the United States and Canada.

So there we have it: Unless a man is rebelling against the government, and using force against it (claims Luko), he is “consenting” to whatever force it chooses to use against him.

Lest Luko, or anyone else, calls this is an absurd conclusion, let us quote him once more:

the free market has indeed spoken – as most people do pay their taxes and most people have not revolted- it’s a RESOUNDING YES vote for the current system of government. The tiny minority of WACKO Waco Texas and the bombers of the government buildings in Oklahoma have not sparked a general revolt among the masses.

Most people are not robbing the government, shooting its agents, or blowing up its buildings. Therefore, Luko theorizes, they must be consenting to its agents robbing them, shooting them, and blowing up their homes (should it choose to). To him, that is the only possible explanation of the evidence. Alternative explanations – say, that most people do not engage in robbing, shooting, or bombing simply because they think that robbing, shooting, and bombing, are wrong – never seem to occur to him.

Luko’s argument by analogy

But enough of theory. Luko claims that his “social contract” is not mere theory, after all, but based on “empiricism”. So let us ask: is there any actual empirical evidence – as opposed to his theoretical interpretations of why people vote (or not), why they live where they do, and  why they are not rebelling  – that such contracts exist? Particularly, is there anything in the “free market” analogous to this “social contract” and its “tacit” consent?

Luko does offer one analogy, so it behooves us to examine it.

where coercive action is taken in relation to taxes, and the implicit threat of its use by the state, [it] is NOT plunder nor illegitimate delegation of power – but rather “enforcement of a contract” that in return for government goods and services – one pays taxes. Enforcing a contract is NOT coercion to steal your money, this is not plunder. If you contract to pay for cable TV and then later refuse payment because you say the cable company has no power over you – the cable company will take you to court to “enforce” the contract and get the money from you. This is “due process” and legitimate use of coercion.

Cable companies are a good example, because, like governments, they are territorial monopolies (at least here in Canada). If one wants cable, one has to deal with the cable company; just as, if one wants those government services, one has to deal with the government. So let us imagine a cable company taking someone to court who didn’t “pay his bill”:

Lawyer: Your honor, this miscreant owes my client, the cable company, over $10,000 for services we provided.
Judge: My, that is a large amount. Can you show the court his signed contract agreeing to pay for these services?
Lawyer: No, we can’t; because we don’t have one. But we don’t need one, because he agreed to pay for them anyway.
Judge: Indeed? When did he agree?
Lawyer: Why, when he agreed to our social contract, of course.
Judge: Your “social contract”? What are you talking about?
Lawyer: Well, your honor: he could have bought stock in our company and elected the people who set the rates, and he didn’t; so that shows he had no problem with paying whatever rates we charge.
Judge: And that is all of your evidence?
Lawyer: No, your honor. He has lived in our territory for over 10 years, although he could have moved out at any time; which also shows that he agreed to pay for our services for all of that time. And he hasn’t paid a thing.
Judge: So he lived in your territory, and he didn’t buy any stock. Is that your only evidence for this “social contract”?
Lawyer: No, your honor: there is one more thing. He has never bombed our offices, or killed any of our representatives. Surely that is conclusive proof that he agreed to pay whatever we wish to charge him.

If Luko can produce one example of a cable company taking someone to a court, making an argument like that, and being able to “get the money,” then he has a sound argument by analogy. Until then, he has nothing.


Despite Luko’s invoking of “empiricism”, he presents absolutely no empirical evidence for the “social contract” as he imagines it. End of story?

Not quite; for, lost in the middle of his article, there is one other quotation that calls for comment:

A stable society indeed consents to “legitimate coercion” by the state, empowered by the people to enforce socially acceptable and traditional common laws.

This sounds like a much different “contract,” postulating not the totalitarian type offered by Hobbes, Rousseau, or Luko (an unlimited “consent of the people” to whatever a government does to them), but only a limited, hypothetical consent to obey certain “acceptable” laws. For all the absurdity of Mr. Luko’s totalitarian arguments, such a limited consent just might exist. Exploring that idea, though, will have to wait for another time.

Source: Social Contract: The myth